BR  516. S7  T9  1875 
Strong,  William,  1808-1895 
TWO  lectures  upon  the 
relations  of  civil  law 


TWO   LECTURES 


UPON   THE 


RELATIONS  OF  CIVIL  LAW 


CHURCH  POLITY,  DISCIPLINE,  AND  PROPERTY. 


BY    ./ 
HON.   WILLIAM   STRONG,   LL.D. 

Justice  of  the  Supreme  Court,  U.  S. 


NEW   YORK: 

DODD     &     MEAD,     PUBLISHERS, 

751  BROADWAY. 


Copyright  secured.     Dodd  &  Mead,  1875. 


PREFACE. 


The  two  following  lectures  were  deliv- 
ered, by  request,  before  the  faculty  and 
students  of  the  Union  Theological  Sem- 
inary in  New  York,  during  the  winter  of 
1874-5.  In  preparing  them,  it  was  not 
the  purpose  of  the  author  to  make  a  full, 
orderly,  and  elaborate  exposition  of  the 
subject  intended  to  be  presented.  Neither 
the  time  nor  the  space  he  was  at  liberty 
to  use,  was  sufficient  for  such  an  exposition. 
But  it  was  his  effort  to  give  to  those  who 
heard  him,  such  information  as  he  regarded 
quite  important  for  them  to  have,  respect- 
ing the  general  principles  of  municipal  or 


PREFACE. 


civil  law  bearing  upon  the  polity  of 
churches  in  this  country,  and  upon  their 
discipline  and  property.  Courts  of  law  in 
the  several  States  of  the  Union  are  not 
unfrequently  occupied  by  controversies  in 
which  these  principles  are  involved,  and  it 
is  believed  to  be  important  that  ministers 
and  other  officers  of  churches  should  have 
some  acquaintance  with  them.  Such 
knowledge  would,  in  many  cases,  tend  to 
relieve  them  from  embarrassment,  and 
enable  them  to  avoid  the  unhappy  litiga- 
tion by  which  the  peace  and  prosperity  of 
churches  is  so  much  disturbed.  In  the 
hope  that  what  I  have  said  in  these  lectures 
may  prove  useful  to  others  than  those  who 
heard  them,  they  are  now  given  to  the 
press. 

W.  Strong. 


FIRST    LECTURE. 


Gentlemen  of  the  Semi7iary  : — 

In  attempting  to  exhibit  before  you 
some  of  the  organized  rules  of  civil  or 
municipal  law,  I  find  myself  embarrassed 
by  several  considerations.  One  is  found 
in  the  fact  that  abstract  legal  discussions 
are  proverbially  dry  and  uninteresting  to 
those  who  have  not  made  the  law  a  subject 
of  considerable  investigation.  Such  persons 
cannot  be  expected  to  discover,  at  once, 
how  far-reaching  a  single  principle  may 
be,  what  relation  it  bears  to  a  system  wide 
enough  to  embrace  all  human  conduct 
in   social  life,  and  how  necessary  it  is  to 


FIRST   LECTURE. 


observe  carefully  distinctions  apparently 
minute  and  unimportant,  yet  really  signifi- 
cant and  potential  in  results.  There  are 
few  minds  for  which  the  abstract  has  any 
attractions.  Even  for  the  student  whose 
purpose  it  is  to  adopt  the  law  as  a  profes- 
sion, a  resolute  will  is  needed  to  overcome 
the  disrelish  he  is  sure  to  encounter  in  the 
earlier  stashes  of  his  investiQ:ations.  It  is 
related  of  a  distinguished  English  lawyer 
that,  when  consulted  by  a  father  respect- 
ing the  qualifications  necessary  for  his 
son^s  attaining  success  at  the  bar,  he  re- 
plied by  the  inquiry,  "  Can  your  son  eat 
sawdust  without  butter  ?  "  I  know,  how- 
ever that  the  uninteresting  nature  of  my 
subject  ought  not  to  embarrass  me.  That 
which  Mr.  Chitty  described  as  "  sawdust 
without  butter "  is  not  unnutritious  food. 
In    multitudes  of  instances  it  has  proved 


FIRST   LECTURE.  5 

an  element  of  power  and  of  usefulness. 
It  by  no  means  follows  that,  because  a 
subject  to  w^iich  we  devote  our  attention 
is  difficult  and  uninteresting,  it  is  therefore 
unprofitable.  It  is  often  true,  in  our  riper 
years  as  it  was  in  our  boyhood,  that  the 
studies  which  have  least  attraction  for  us, 
are  those  which  w^e  most  need  to  pursue  ; 
those  which  tend  in  the  highest  degree  to 
our  mental  development  and  to  our  effi- 
ciency in  life. 

Other  sources  of  the  embarrassment 
which  I  feel,  are  found  in  the  difficulty  of 
selecting  the  particular  topics  to  which  your 
attention  may  most  profitably  be  directed, 
and  in  the  impossibility  of  thoroughly  dis- 
cussing any  subject,  selected  within  the  as- 
signed limits  of  these  lectures.  Selection  is 
indispensable.  Municipal  law  is  a  very  large 
and  comprehensive  subject.   It  embraces  all 


FIRST    LECTURE. 


the  numerous  relations  which  men  sustain 
to  each  other  in  a  state  of  civil  society.  It 
cannot  well  be  understood  without  knowl- 
edge of  its  history  and  development.  More- 
over, it  is  a  system  no  part  of  which  can 
be  thoroughly  comprehended  without  ac- 
quaintance with  every  other  part,  and 
without  some  conception  of  it  as  a  whole. 
It  has  sometimes  been  said  to  be  the  accu- 
mulated common  sense  of  the  wisest  men 
of  many  generations  applied  to  the  affairs 
of  social  life,  and  adapted  to  that  life's 
innumerable  relations.  Like  everything 
human,  it  is  also  undergoing  constant 
changes  to  meet  the  ever-changing  condi- 
tions and  wants  of  civil  society.  Among 
its  maxims  are  some,  doubtless,  which  do 
not  commend  themselves  to  the  entire 
approbation  of  the  age  in  which  we  live. 
Yet  even  these  are  accepted  rules  of  civil 


FIRST   LECTURE. 


conduct,  and  they  are  not  without  support 
in  sound  reason.  They  are  as  controlhng 
as  if  they  commanded  universal  approval. 
For  every  civil  relation,  municipal  law 
prescribes  a  system  of  rules  together  con- 
stituting what  is  believed  to  be  the  most 
just  and  convenient  regulation  of  human 
conduct  therein.  To  enumerate  these  rules, 
or  to  trace  the  modifications  they  have 
undergone,  would  be  impossible  within  the 
limits  of  the  most  extended  course  of  lec- 
tures. It  would  be  the  labor  of  a  lifetime. 
Yet  something  may  be  accomplished  in  a 
very  brief  period.  Though  to  make  our- 
selves thoroughly  acquainted  with  the  sci- 
ence of  civil  law;  with  its  general  princi- 
ples, or  framework,  and  with  the  details  of 
its  structure,  requires  (to  use  the  words  of 
a  distinguished  English  judge),  more  than 
the  "  lucubrationes  viginti  annorum,"   we 


FIRST   LECTURE. 


can,  by  making  use  of  fragments  of  time, 
partially  explore  one  of  its  departments, 
and  make  discoveries  that  will  not  be 
without  their  use.  This  is  all  I  propose 
to  attempt  in  these  lectures. 

There  are  some  of  the  rules  of  civil  law 
with  which,  in  my  judgment,  those  who  in- 
tend entering  the  Christian  ministry  ought 
to  be  acquainted.  Ignorance  of  them  has, 
I  know,  in  some  cases,  proved  embarrass- 
ing, and  has  led  to  unhappy  mistakes. 
I  am  aware  it  has  sometimes  been  said  : 
Partial  knowledge  tends  to  error ;  and  to  a 
limited  extent  this  may  be  true.  Another 
maxim  often  quoted  is  "  A  little  knowledge 
is  a  dangerous  thing,  drink  deep,  or  taste 
not,  etc."  From  this  I  entirely  dissent. 
UndcrvaluinQ^  not  in  the  least  the  worth  of 
thorough  acquaintance  with  every  subject 
in  regard  to   which   knowledge  is  sought, 


FIRST   LECTURE. 


I  still  maintain  that  even  imperfect  knowl- 
edge is  better  than  none.  All  our  knowl- 
edge is  imperfect.  There  is  no  subject  in 
morals  or  in  law,  the  extremest  depths  of 
which  man  has  ever  sounded.  The  un- 
known greatly  transcends  the  known.  But 
even  partial  knowledge  is  power,  if,  so  far 
as  it  extends,  it  be  accurate.  In  the  hope, 
therefore,  that  what  I  may  say  will  prove 
useful,  though  it  be  not  a  full  exposition 
of  all  that  may  be  known  of  the  subject, 
I  invite  your  attention  to  some  remarks 
upon  a  branch  of  civil  law,  some  knowl- 
edge of  which,  I  assume,  you  may  desire 
to  possess.  It  is  the  relation  which  civil, 
or  municipal  law  sustains,  in  this  country, 
to  church  polity,  discipline,  and  property. 
That  some  such  relation  does  exist,  may 
be  inferred  from  what  I  have  already  said, 
but  precisely  what  it  is,  and  to  what  partic- 


lO  FIRST   LECTURE. 


ulars  it  extends,  is  not  easily  defined. 
Certainly  it  is  far  less  intimate  in  this 
country  than  it  is  in  any  other  country 
where  the  common,  or  the  civil  law,  is 
recognized. 

Great  Britain,  from  which  we  have 
derived  the  great  body  of  our  laws, 
has  a  legally  established  form  of  church 
organization  connected  with  the  govern- 
ment ;  as  well  as  a  form  of  doctrine  ; 
a  religion  of  state.  The  polity  of  the 
church,  as  well  as  its  discipline  and  prop- 
erty, are  subordinate  to  the  government 
and  are  regulated  by  it.  And  in  the  con- 
tinental countries  of  Europe,  the  church 
is  also  supported  by  laws,  and  has  a  close 
connection  with  the  state.  In  England, 
the  polity  of  the  established  church  rests 
in  large  measure  upon  the  civil  law,  and 
no  substantial  change  or  modification  of  it 


FIRST    LECTURE.  II 

can  be  made  without  the  consent  of  the 
government.  Its  bishops  are  appointed 
by  the  crown,  and  they  have  a  seat  in 
Parliament  as  bishops,  or  lords  spiritual. 
The  church  is  dependent  for  its  support 
upon  the  civil  law,  its  discipline  is  con- 
trolled or  supervised  by  the  state,  and  its 
property  is  held  and  governed  by  the  rules 
of  the  common  law.  Dissent  is  tolerated,  it 
is  true,  but  the  relation  of  the  civil  govern- 
ment to  the  established  church  is  almost 
as  intimate  as  is  that  of  one  of  our  State 
governments  to  a  corporation  created  by  it. 
In  the  United  States  there  is  no  union 
of  church  and  state,  and,  there  never  can 
be  any  without  a  change  in  our  organic 
laws.  The  amendments  of  the  Federal 
Constitution  adopted  in  1789  expressly 
ordain  that  "  no  religious  test  shall  ever  be 
required    as   a  qualification   for    any    civil 


12  FIRST   LECTURE. 

office  or  public  trust  under  the  United 
States,  and  that  Congress  shall  make  no 
law  respecting  an  establishment  of  reli- 
gion, or  prohibiting  the  free  exercise  there- 
of." These,  it  is  true,  are  restrictions 
only  upon  the  power  of  the  general  gov- 
ernment. They  are  not  operative  upon 
the  several  States.  But  in  almost  all,  if 
not  in  all,  the  constitutions  of  the  several 
States  may  be  found  ordinances  of  similar 
purport.  I  presume  there  is  no  exception. 
They  are  variant  in  form  and  in  modes  of 
expression,  but  their  purpose  and  meaning 
is  substantially  the  same.  They  declare 
generally  that  no  preference  shall  ever  be 
given  to  one  form  of  church  polity  over 
another ;  or  to  one  denomination  over 
another;  that  no  religious  test  shall  be 
required  as  a  qualification  for  office,  or  for 
any  position  of  trust,  and  that  involuntary 


FIRST   LECTURE.  1 3 

payments  for  the  support  of  any  religious 
teacher,  or  for  the  erection  of  any  reHgious 
edifice,  shall  not  be  compelled.  They 
declare  it  to  be  the  right  of  all  men  to 
worship  God  in  any  manner,  at  all  times, 
according  to  the  dictates  of  their  own  con- 
science. The  words  of  the  constitution 
of  Delaware  well  express  the  general  sense 
of  all  the  provisions  relative  to  this  subject 
which  have  been  incorporated  into  the 
fundamental  laws  of  the  different  States, 
though  they  are  less  explicit  than  some 
others.  After  premising  that  men  have  a 
natural  right  to  worship  and  to  serve  their 
Creator  according  to  the  dictates  of  their 
consciences  ;  that  it  is  the  duty  of  all  men 
frequently  to  assemble  together  for  the 
pubhc  worship  of  the  Author  of  the  uni- 
verse, and  that  purity  and  morality,  on 
which     the     prosperity     of    communities 


14  FIRST   LECTURE. 

depends,  are  thereby  promoted,  that  con- 
stitution declares  that  "  no  man  shall  or 
ought  to  be  compelled  to  attend  any 
religious  worship  ;  or  to  the  maintenance 
of  any  ministry  against  his  own  free  will 
and  consent,  and  that  no  power  shall,  or 
ought  to  be  vested  in,  or  assumed  by,  any 
magistrate  that  shall  in  any  case  interfere 
with,  or  in  any  manner  control,  the  rights 
of  conscience  in  the  free  exercise  of  reli- 
gious worship,  nor  shall  any  preference  be 
given  by  law  to  any  religious  societies, 
denominations,  or  modes  of  worship." 

By  the  third  section  of  the  ninth  article 
of  the  constitution  of  Pennsylvania,  it  is 
ordained,  "  that  all  men  have  a  natural  and 
indefeasible  right  to  worship  Almighty  God 
according  to  the  dictates  of  their  own  con- 
sciences ;  that  no  man  can  of  rioht  be 
compelled  to  attend,  erect,  or  support  any 


FIRST    LECTURE.  I  5 

place  of  worship,  or  to  maintain  any  minis- 
try against  his  consent ;  no  human  au- 
thority can  in  any  case  whatever  control, 
or  interfere  with,  the  rights  of  conscience ; 
and  no  preference  shall  ever  be  given  by 
law  to  any  religious  establishment  or 
modes  of  worship."  I  refer  to  no  others. 
These  are  fair  samples  of  what  may  be 
found  in  the  fundamental  law  of  the  States 
generally.  They  are  acknowledgments  of 
natural  .  and  indefeasible  rights,  and  they 
are  disclaimers  of  governmental  powers 
claimed  and  exercised  in  Great  Britain,  as 
well  as  on  the  continent  of  Europe. 

These  provisions  in  the  Federal  and 
State  constitutions,  it  is  obvious,  have 
rendered  impossible  any  such  close  rela- 
tion between  civil  government  and  church 
polity  and  discipline  as  now  exists  in 
England,  and  elsewhere,  and  they  greatly 


l6                               FIRST   LECTURE. 
■ 

restrict,  if  they  do  not  forbid,  interference 
by  the  law,  not  merely  with  individual  faith, 
but  with  the  external  and  internal  affairs 
of  church  organization,  including  church 
discipline. 

This  renunciation  of  civil  authority 
over  ecclesiastical  organizations  is  the 
assertion  of  a  doctrine  not  always  accepted 
even  in  this  country.  It  was  not  accepted 
by  most  of  the  colonies  in  their  early  exist- 
ence, by  most  of  them  even  at  the  time  of 
the  American  revolution.  Down  to  that 
period  there  w^as  a  much  closer  con- 
nection between  the  church  and  the  state 
than  now  exists.  The  church  in  the 
colonies  was  largely  supported  by  the 
civil  law,  and  its  organization,  as  well  as 
the  right  to  membership  in  it,  was  often 
the  subject  of  provincial  legislation,  and 
received  the   attention  of  the  magistracy. 


FIRST    LECTURE. 


Indeed,  it  is  only  within  the  last  forty  years 
that  a  complete  divorce  has  been  effected 
in  some  of  the  States,  and  that  the  princi- 
ples asserted  in  the  Federal  Constitution, 
as  well  as  in  those  of  the  States,  have  been 
accepted  in  their  full  meaning. 

The  history  of  this  change  in  the 
relation  of  the  civil  law  to  church  poHty 
and  discipline  would  be  interesting  and 
instructive,  had  I  time  to  follow  it 
through  all  its  course.  I  can  but  briefly 
notice  it.  It  was  quite  in  accordance  with 
what  might  have  been  expected  that  the 
earlier  settlers  of  the  country,  who  came 
principally  from  England,  brought  with 
them  the  law  under  which  they  had  been 
trained.  And  that  they  did  bring  with 
them  the  compulsory  usages  of  their 
fatherland,  that  common  law  which  regu- 
lated civil  conduct  generally,  is  well  known. 


1 8  FIRST   LECTURE. 

They  knew  no  other.  They  had  been 
accustomed  to  the  existence  of  a  church 
closely  connected  with  the  state,  and 
subordinate,  in  many  particulars,  to  the 
king,  to  parliament,  and  to  the  civil  magis- 
tracy. It  was  very  natural  that  they 
should  adopt  a  similar  system,  with  such 
modifications  only  as  their  altered  circum- 
stances, their  religious  faith,  and  their 
experience,  suggested.  Accordingly,  al- 
most at  the  first,  some  of  the  colonial 
legislatures  began  to  enact  laws  respecting 
the  church,  in  imitation  of  the  laws  of 
England.  Their  enactments  extended  to 
church  organization,  to  the  erection  of 
parishes  with  defined  boundaries,  to  pro- 
vision for  the  support  of  a  ministry,  to 
furnishing  places  for  public  worship,  to 
compelling  attendance  upon  such  wor- 
ship    and    even    to    the   denunciation    of 


FIRST    LECTURE. 


19 


penalties  against  false  doctrine  and  heresy. 
In  Massachusetts,  parishes    were    created 
only    by    order     of    the    General     Court. 
Their  metes  and  bounds  were  defined  by 
law.     They  were    ecclesiastical   precincts, 
as  fully  as  English  parishes  are,  though  in 
many  cases  corresponding  with   township 
divisions.     It  was  recognized  as  an  oblio-a- 
tion    proper   to    be  imposed    by  the    civil 
law  that  every  man  inhabiting  a  parish  or 
town,  or  having  lands  therein,  should  pay 
taxes  for  the  support  of  the  Gospel  with- 
in that  town  or   precinct,  and   such    taxes 
were  imposed  by  statutes.     Each  town  or 
parish    was    required    by   law   to    have    a 
minister,  a  meeting-house,  and  a  parsonage, 
and,  in  case  of  neglect  to  furnish  them  and 
to   provide    for   the    maintenance    of    the 
minister,  the  county  court  was  empowered 
to    order    what    maintenance    should    be 


20  FIRST   LECTURE. 

allowed,  and  to  issue  warrants  to  assess 
taxes  upon  the  inhabitants,  which  the 
constables  were  required  to  collect  like  any 
other  tow^n  taxes.  From  such  orders  of 
the  county  courts  appeals  to  the  General 
Court  were  also  authorized.  Penalties 
were  imposed  upon  towns  for  neglect  to 
supply  "  able  and  faithful  preaching "  to 
the  people.  Fines  were  levied  by  law  for 
absence  from  public  worship,  and  judges 
of  county  courts  were  enjoined  by  statute 
to  attend  to  the  orders  of  the  General 
Court  concerning  purging  the  towns  from 
such  ministry  and  public  teachers  as 
should  be  found  vicious  in  their  lives  and 
perniciously  heterodox  in  their  doctrine. 
Magistrates  were  also  authorized  to 
impose  punishments  upon  those  who,  in 
their  opinion,  were  guilty  of  error  or 
heresy,  and   the  right  of  persons  to  vote 


FIRST   LECTURE.  21 

in  all  parish,  or  ecclesiastical  matters,  was 
regulated  by  the  civil  law.  All  this  ex- 
hibits a  very  close  connection  between 
the  church  and  the  state,  almost  complete 
subordination  of  the  church  to  the  state  in 
matters  of  polity,  of  discipline,  of  support, 
and  even  of  faith. 

In  most  of  the  other  colonies  a  very 
similarly  close  relation  existed  between  the 
civil  law  and  the  church.  This  is  espe- 
cially true  of  those  in  New  England,  ex- 
cepting Rhode  Island.  Nor  was  such 
legislation  confined  to  the  provinces  mainly 
settled  by  the  Puritans.  There  were  differ- 
ences in  detail,  but  the  right  of  the  state 
to  direct  church  organization,  discipline 
and  support,  as  well  as  to  control  doctrine, 
to  some  extent,  appears  nowhere  (except 
perhaps  in  Rhode  Island)  to  have  been 
seriously  questioned.     By  the  charter   of 


22  FIRST    LECTURE. 

liberties  of  New  York,  established  by  the 
General  Assembly  in  1683,  under  the 
Duke  of  York,  complete  enjoyment  of 
religious  doctrine  and  worship  was  ac- 
corded only  to  persons  who  professed 
their  faith  in  God  by  Jesus  Christ.  I  am 
not  aware  that  the  political  rights  of  free- 
men were  denied  to  those  who  were  not 
members  of  some  orthodox  church  in  the 
province,  as  they  were  in  some  other  colo- 
nies. But  in  many  other  respects  the 
early  legislation  of  New  York  relating 
to  ecclesiastical  matters  was  much  like 
that  of  Massachusetts,  In  some  particulars 
it  was  more  remarkable.  For  very  many 
years  the  civil  governor  was  authorized  to 
collate  any  person  to  any  church,  chapel, 
or  other  ecclesiastical  benefice  within  the 
province,  as  often  as  any  of  them  hap- 
pened to  be  void,  and  all  religious  minis- 


FIRST   LECTURE.  23 

ters  were  required  to  be  commissioned 
by  the  government.  Even  down  to  the 
time  of  the  revolution,  Dutch  and  Presby- 
terian churches  found  great  difficulty  in 
obtaining  grants  of  charters. 

The  first  code  of  laws  of  Virginia 
enjoined  that  religion  be  established  in  the 
province  according  to  the  doctrine  and 
rites  of  the  church  of  England,  and  thus 
the  English  Episcopal  church  became  the 
church  of  the  State.  Strict  conformity  was 
required  by  the  statute  law,  and  every 
inhabitant  was  compelled  to  contribute 
for  the  support  of  the  estabHshed  church. 
Civil  law  directed  vestry  men  to  be  chosen 
in  every  parish ;  the  whole  liturgy  to  be 
read  thoroughly  in  public  worship,  and 
denounced  banishment  as  the  penalty  of 
teaching,  even  in  private,  by  non-conform- 
ists.    No  marriage  ceremony  was  tolerated, 


24  FIRST   LECTURE. 


except  performed  according  to  the  rubric 
in  the  book  of  common  prayer.  Fines 
were  imposed  upon  Quakers  for  meeting 
in  conventicles  of  their  own,  and  for  ab- 
sence from  the  service  of  the  estabUshed 
church,  and  schismatics  were  subjected  to 
penalties  for  refusing  to  have  their  children 
baptized.  These  harsh  provisions  of  the 
law,  it  is  true,  were  not  all  of  long  continu- 
ance, but  there  was  in  Virginia,  down  to 
the  period  of  the  revolution,  a  close  alli- 
ance between  the  civil  government  and 
the  church. 

In  East  Jersey  religious  liberty  was 
confined  to  Protestant  professors  of  the 
Christian  faith,  and  the  legislature  of  West 
Jersey  prescribed  a  confession  of  faith  as  a 
condition  of  holding  office.  Indeed  I  feel 
justified  in  asserting,  after  considerable 
examination     of  the     colonial    laws,   that 


FIRST   LECTURE.  25 

nearly  all  the  colonies,  at  some  period  of 
their  history,  undertook  to  regulate  eccle- 
siatical  affairs  as  fully  as  if  their  power 
over  those  affairs  had  been  absolute  and 
unlimited. 

I  have  not  time  to  pursue  this  refer- 
ence to  historical  facts  further.  Enough 
has  been  said  to  show  that,fwith  rare  excep- 
tions, the  colonies  all  claimed  and  exer- 
cised the  right  to  control  religious  faith, 
church  order,  and  discipline,  and  asserted 
complete  supremacy  over  church  organiza- 
tions. It  was  not  until  they  were  brought 
into  intimate  political  union  with  each 
other  in  the  revolutionary  struggle ;  not 
until  they  were  threatened  with  common 
dangers  from  abroad ;  when  it  became 
apparent  that  their  safety  depended  upon 
their  perfect  harmony  of  feeling  and 
action,  and  not  until  they  were  led  to  see 
2 


26  FIRST    LECTURE. 

how  difficult,  if  not  impossible,  it  would  be 
for  them  to  unite  on  any  common  platform 
of  religious  faith  or  church  order,  being 
as  they  were,  Congregationalists  or  Inde- 
pendents in  New  England,  Presbyterians 
and  Friends  in  Pennsylvania  and  New 
Jersey,  Roman  Catholics  in  Maryland,  and 
Episcopalians  in  the  South — not  until  then, 
that  they  accepted  the  modern  doctrine 
which  recognizes  perfect  religious  liberty 
and  equality  before  the  law,  without  the 
existence  of  any  power  in  the  state  to 
regulate  or  control  church  establishment 
or  church  discipline.  Before  that  time 
indeed,  the  church  had  been  completely 
divorced  from  the  state  in  some  of  the 
colonies,  but  then  its  independence  be- 
came generally  an  accepted  doctrine.  It 
found  a  place  at  once  in  several  of  the 
constitutions   which  superseded  the  colo- 


FIRST    LECTURE.  2/ 

nial  charters  ; .  and  in  the  celebrated  ordi- 
nance of  1787,  for  the  government  of  the 
territory  of  the  United  States  north  and 
west  of  the  Ohio,  it  was  declared  to  be  an 
article  of  compact  between  the  original 
States  and  the  people  and  States  in  the 
territory — a  fundamental  principle  to  re- 
main forever  unalterable,  that  no  person 
demeaning  himself  in  a  peaceable  manner 
should  ever  be  molested  on  account  of  his 
mode  of  worship,  or  religious  sentiments. 
This  was  before  the  adoption  of  the  Fed- 
eral Constitution,  and  it  was  soon  followed 
by  the  declarations  I  have  quoted  from 
that  instrument,  and  by  the  more  explicit 
declaration  in  the  oro^anic  laws  of  the 
several  States. 

But,  notwithstanding  this  complete 
renunciation,  of  authority  in  the  state  to 
prescribe  any  form  of  church  government, 


28  FIRST   LECTURE. 

or  to  control,  or  interfere  with  the  internal 
management  of  any  church  organization, 
or  to  make  provision  for  its  support,  or  for 
the  support  of  its  ministers  ;  notwith- 
standing perfect  religious  freedom  is  now, 
in  this  country,  everywhere  secured  by 
bills  of  rights  incorporated  into  the  funda- 
mental laws  of  the  land,  it  is  not  to  be 
inferred  that  the  civil  law  has  no  longer 
any  relation  to  the  church — to  either  its 
polity,  its  discipline,  or  its  property.  On 
the  contrary,  it  is  still  true  that  the  law 
recognizes  the  existence  of  the  church  as 
an  important  element  of  civil  society.  It 
acknowledges  and  protects  its  right  to 
exist,  and  to  enjoy  the  possession  of  privi- 
leges and  powers.  It  recognizes  also  the 
discipline  of  the  church,  by  which  I  mean, 
not  merely  its  correction  and  punishment 
of  its  members,  but  also  its  maintenance  of 


FIRST    LECTURE.  29 

church  order  and  internal  reo^ulation.      It 
does  not  undertake  to  determine  whether 
one  rehgious  association  is  more  truly  the 
church  than  another,  or  to  allow  to  one  a 
preference    over    another,    but    it   permits 
each  to  make  its  own  rules  and  to  enforce 
them.     It   protects    every    church    in    the 
enjoyment  of  rights  of  property,  and  when- 
ever those  rights  are  invaded  it  furnishes 
a   remedy.     Recognizing   the   indefeasible 
right  of  any  body  of  men  to  associate  for 
the  worship   of  God,   in   accordance  with 
the  forms  and  modes  selected  by  them,  it 
will    not    allow    their    assemblies    to    be 
disturbed.     In  many  of  the  States,  I  think 
in  all,  statutes  have  been  enacted  against 
such    disturbances,    and    even    where    no 
such  statutes   exist,  it  would   be   regarded 
as    a   misdemeanor  at    law   to    disturb    a 
religious     congregation,    a     misdemeanor 


30  FIRST   LECTURE. 

punishable  by  fine  and  imprisonment. 
And,  perhaps,  it  is  regarded  as  an  offence 
of  greater  enormity  to  disturb  a  rehgious 
assembly  than  it  would  be  to  create  dis- 
order in  any  other  gathering,  for  the 
reason  that  the  right  to  assemble  for 
religious  purposes  is  guaranteed  by 
organic  laws.  There  are  few,  if  any 
statutes,  prohibiting  disturbances  of  other 
assemblages. 

No  state  recognition  of  the  church, 
however,  or  even  of  religious  obligation, 
is  to  be  inferred  from  the  fact  that  the  civil 
law  punishes  many  offences  which  are 
condemned  by  the  Divine  law,  and  which 
the  church  also  condemns  and  punishes. 
Many  offences  against  civil  society  are 
acts  prohibited  by  the  Decalogue,  and  by 
all  churches.  False  swearing,  theft, 
adultery,    and    murder,    are    violations    of 


FIRST    LECTURE.  3 1 

municipal  law,  and  persons  guilty  of  them 
are  punished  by  authority  of  the  state,  not 
because  the  offences  are  violations  of 
Divine  law,  or  the  law  of  the  church, 
but  because  they  are  infractions  of  the 
rules  which  civil  society  has  found  it 
necessary  to  establish  for  its  own  protec- 
tion. In  many  of  the  States,  orderly 
observance  of  the  Sabbath,  and  abstinence 
from  unnecessary  labor,  are  enjoined  by 
statutes.  Penalties  are  also  denounced 
against  profaneness  and  blasphemy.  But 
it  would  be  a  mistake  to  regard  such 
enactments  as  church  recognitions.  They 
may  have  been  suggested  by  respect  for 
religion,  but  as  civil  enactments  they  are 
justifiable  only  by  their  tendency  to 
protect  the  public  peace,  and  to  preserve 
public  decency,  good  order,  and  good 
morals — objects    for    which    civil    society 


32  FIRST    LECTURE. 

exists.  Whether  it  be  true,  as  has  been 
held  by  some  courts  (notably  the  highest 
courts  of  New  York  and  Pennsylvania), 
and  as  has  been  declared  by  very  many 
eminent  judges,  that  Christianity  is,  in  a 
limited  sense,  a  part  of  the  common  law  of 
the  land,  or  whether  it  be  not  true,  "  it  is 
still  consistent  with  every  guaranty  of  the 
rights  of  conscience  and  religious  liberty 
to  hold  that  it  is  the  popular  religion  of 
the  country,  an  insult  to  which  tends  to 
the  disturbance  of  the  public  peace.  The 
laws  and  institutions  of  all  the  States  are 
built  on  the  foundation  of  reverence  for 
Christianity.  To  this  extent  at  least,  it 
must  certainly  be  considered  as  settled, 
that  the  religion  revealed  in  the  Bible 
is  not  to  be  openly  reviled  or  blasphemed, 
to  the  annoyance  of  sincere  believers, 
without  responsibility  to  the  civil  law." 


FIRST    LECTURE. 


Apart  from  this,  however,  there  is 
abundant  evidence  that  the  law  in  this 
country  recognizes  and  tolerates  the 
existence  of  church  organizations.  I 
may  add  that  this  is  true ;  without  any 
regard  to  their  form,  or  the  details  of  their 
structure,  or  the  avowed  principles  which 
lie  at  their  foundation.  No  matter  what 
may  be  their  constitution,  or  the  religious 
creed  adopted,  even  though  it  be  offensive 
to  the  moral  sense  of  the  community,  the 
law  does  not  forbid  association  of  those 
who  accept  it,  nor  will  it  interfere  to  break 
up  such  associations.  This  statement, 
however,  should  be  cautiously  received, 
for  while  it  is  true  as  made,  it  is  equally 
true  that  the  outworking  of  a  vicious 
creed  may  be  prevented  and  punished. 
TJiat  toleration  and  that  liberty  of  con- 
science which  the  Federal  Constitution  and 


34  FIRST    LECTURE. 

the  constitutions  of  the  several  States  have 
endeavored  to  secure  are  not  construed  so 
as  to  excuse  acts  of  hcentiousness,  or  to 
justify  practices  inconsistent  with  the 
peace  or  safety  of  the  State.  In  many  of 
the  fundamental  laws,  this  reservation  is 
expressly  made.  In  all,  it  is  implied,  if 
not  expressed.  No  church  organization 
therefore,  or  church  creed,  can  be  made  a 
cover  for  any  act  which,  by  the  law  of 
the  State,  is  an  offence  against  the  public 
peace,  against  good  order,  and  good 
morals.  Civil  law  controls  external  con- 
duct, though  not  articles  of  faith.  For 
example,  I  know  of  no  power  in  the  civil 
government  which  can  prevent  the  for- 
mation of  a  church  (if  such  an  association 
can  be  called  a  church),  one  of  the  articles 
of  the  creed  of  which  should  be  that 
marriage  imposes  no  obligations,  and  that 


FIRST    LECTURE.  35 


free  intercourse  of  the  sexes  is  praise- 
worthy ;  or  (another  article),  that  one  in 
needy  circumstances  may,  without  sin, 
take  the  property  of  another  to  reheve  his 
distresses,  against  that  other's  consent. 
No  law  exists  in  this  country  against  such 
an  association.  But  whenever  such  prin- 
ciples are  acted  out,  whenever  an  indi- 
vidual does  any  act  accordant  with  such  a 
creed,  he  becomes  amenable  to  the  civil 
law,  and  neither  his  church  nor  his  creed 
can  protect  him  against  legal  penalties. 

The  Mormon  church  furnishes  a  good 
illustration  of  what  I  mean.  It  is  well 
known  one  of  the  doctrines  of  that  organi- 
zation, is  that  polygamy  is  in  harmony  with 
the  law  of  God  and  commendable.  Revolt- 
ing as  such  a  doctrine  is,  and  demoralizing 
in  its  influence,  it  has  not  been  thought 
that  either  the  common  law  or  any  statute 


36  FIRST    LECTURE. 


of  the  United  States  can  break  up  the 
organization,  or  forbid  its  members  from 
holding  and  avowing  such  a  behef,  or 
associating  for  its  propagation.  But 
the  practice  of  it,  in  other  words,  its 
outworking,  is  within  the  control  of  the 
civil  law,  and  acts  of  Congress  have  been 
passed  forbidding  and  punishing  plural 
marriages.  It  would  be  idle  for  a 
Mormon  indicted  for  bigamy  to  plead 
that  his  second  marriao-e  was  recoo-nized 
as  lawful  by  his  church,  and  sanctioned 
by  his  own  religious  convictions. 


Thus  far  I  have  called  your  attention 
mainly  to  the  fact  that  the  civil  law 
tolerates  the  existence  of  church  organiza- 
tions with  such  a  polity  as  their  members 
may  choose  to  adopt,  without  inquiry  into 
the  articles  of  their  faith.     I  may  now  add 


FIRST   LECTURE.  37 

that  the  law  also  leaves  the  internal  man- 
agement of  a  church  exclusively  to  their 
own  regulations.  Regarding  them  as  vol- 
untary associations,  it  assumes  that  their 
members  have  consented  to  be  bound  by 
the  discipline  to  which  they  have  sub- 
jected themselves.  So  far  as  that  disci- 
pline consists  in  the  correction  and 
punishment  of  members,  in  suspension 
from  membership,  or  in  entire  exclusion 
from  church  privileges,  the  law  not  only 
recognizes  it,  but  to  a  certain  extent  justi- 
fies church  action.  Thus  even  a  public 
declaration  made  pursuant  to  the  rules  of 
order  of  a  church  from  which  a  member  has 
been  excommunicated  because  of  his  com- 
mission of  an  offence  regarded  as  infamous 
by  the  law,  is  justified,  and  no  action  of 
slander  can  be  maintained  for  such  a 
publication.     The    law    regards    the    fact 


38  FIRST   LECTURE. 

that  it  was  made  in  the  exercise  of  the 
disciphne  of  the  church  as  a,  protection  to 
the  person  who  makes  it,  and  allows  the 
church  action  to  give  to  the  announce- 
ment a  character  different  from  that  which 
it  would  otherwise  wear.  This  must  be 
understood,  however,  w^ith  the  qualification 
that  the  act  of  discipline  and  its  publi- 
cation  are   not    malicious. 

Again,  the  law  recognizes  the  right  of 
every  church  to  determine  finally  who  are> 
and  who  are  not  its  members.  Herein  is  a 
marked  difference  between  churches  and 
other  organizations.  In  regard  to  mem- 
bership of  private  corporations  generall}^ 
such  as  benevolent,  beneficial,  or  literary 
societies,  as  well  as  those  which  are  pecu- 
niary, rights  to  membership  are  subjects 
of  legal  cognizance,  and  there  is  a  remedy 
provided     for    irregular     amotion.       Such 


FIRST   LECTURE.  39 


corporations  may  be  compelled  to  restore 
to  membership  one  who  has  been  expelled 
without  regular  trial  according  to  the  es- 
tablished forms  of  the  corporate  organiza- 
tion, and  indeed  those  forms  must  be 
strictly  complied  with,  or  a  court  of  law 
will  interfere.  It  will  review  the  proceed- 
ing, and  insist  upon  its  perfect  regularity. 
But  a  church  is  allowed  to  determine  for 
itself,  construing  its  own  organic  rules, 
whether  a  member  has  been  cut  off;  and 
no  civil  court  will  inquire  whether  the 
amotion  was  regularly  made,  or  issue  a 
mandamus  to  compel  a  restoration.  It 
accepts  the  decisions  of  church  courts 
upon  questions  of  membership  as  not  sub- 
ject to  civil  law  review.  At  least  such  is 
the  general  rule. 

Such  is  also  the  case  when  the  question 
is,  Who  are  the    officers    of  the   church  ? 


40  FIRST   LECTURE. 

Upon  that  inquiry  a  civil  court  will  not 
enter,  further  than  to  ascertain  what  the 
church  itself  has  decided,  or  whom  it  recog- 
nizes. Whether  a  man  is  a  minister,  an  elder, 
a  bishop,  or  a  deacon,  cannot  be  determined 
in  any  court  of  common  or  statute  law. 
There  are  however,  some  qualifications 
of  this  statement,  to  which  I  shall  here- 
after refer. 

Almost  all,  if  not  all,  the  questions 
mooted  in  the  civil  courts  of  this  country 
relating  to  church  polity,  discipline,  offi- 
cers, or  members,  have  arisen  incidentally 
in  controversies  respecting  church  prop- 
erty. Our  churches  have  various  forms 
of  organization,  and  devise  rules  for  their 
government  and  discipline,  having  a  bear- 
ing, greater  or  less,  upon  their  rights  to 
the  ownership  and  the  disposition  of 
pecuniary  interests.     The  most  prominent 


FIRST   LECTURE.  41 


forms  are  the  Presbyterian,  the  Congrega- 
tionahst,  or  Independent,  and  the  Episco- 
pal.    Each  of  these  is  ordinarily  an  inte- 
rior organization  within  a  rehgious  society. 
Church  property  is  generally  more  or  less 
under   the  control   of  these    societies,  the 
constituents    of  which,   even    though    not 
members  of  the  church,  have  a  voice  in  its 
acquisition,  management,  and  disposal.     It 
is   held   by  a   variety  of  tenures,  and    im- 
pressed by  a  variety  of  trusts.     Over  these 
trusts  powers  are  often  vested  in  officers  of 
the  church,  officers  distinct  from  those  of 
the  religious  societies.     What    the   trusts 
are,  and    whether  the   powers   over  them 
have  been  rightly  exercised,  has  frequently 
been  a   subject  for   consideratio;i   in  civil 
courts,   and    it    must     be     confessed     the 
decisions  have  not  been  harmonious.     But 
whatever  they  may  have  been,  I   think  it 


42  FIRST    LECTURE. 

may  safely  be  asserted  as  a  general  propo- 
sition, that  whenever  questions  of  disci- 
pline, of  faith,  of  church  rule,  of  member- 
ship, or  of  office,  have  been  decided  by  the 
church  in  its  own  modes  of  decision,  civil 
law  tribunals  accept  the  decisions  as  final, 
and  apply  them  as  made. 

The  question  may  here  be  raised.  Can 
a  civil  court  inquire,  and  determine  for 
itself,  whether  a  church  judicatory  was 
properly  constituted,  in  accordance  with 
the  established  order  of  the  church  orQ:an- 
ization,  and  can  it  disregard  its  decisions, 
if,  in  its  opinion,  the  judicatory  appears 
not  to  have  been  thus  constituted.  This 
question  is  at  present  a  pending  one  in 
the  country,  and  opinions  differ  respecting 
it.  On  the  one  side  it  is  argued  that  the 
analogy  of  the  law  requires  the  question 
to   be  answered   in   the  affirmative.     It  is 


FIRST   LECTURE.  43 

said  to  be  an  establish-ed  rule  of  the  com- 
mon law  that  when  a  matter  is  submitted 
to  the  decision  of  several  arbitrators,  all 
must  act  together,  or  their  decision  will  be 
treated  as  a  nullity,  and  that  this  is  true 
though  it  be  stipulated  by  the  parties  or 
directed  by  a  statute  that  a  majority  may 
decide.  The  presence  of  all  at  the  trial  is 
indispensable,  for  the  reason  that  the  opin- 
ions and  arguments  of  each  may  affect  the 
judgment  of  the  others.  Hence  a  court 
may  always  inquire  w^hether  a  board  of 
arbitrators  has  been  properly  constituted. 
There  is  force  in  their  argument. 
But  on  the  other  hand  a  church  court  can 
hardly  be  likened  to  an  arbitration.  It 
is  a  creature  of  the  organic  law  of  the 
church,  not  the  mere  appointee  of  liti- 
gants, chosen  to  act  within  the  limits 
imposed  by  them.     It  is  difficult  therefore 


44  FIRST   LECTURE. 

to  see  why,  if  it  be  recognized  as  a  suffi- 
cient judicatory  by  the  highest  authority 
in  the  church,  civil  tribunals  must  not 
accept  it  as  such.  If  they  must  not,  great 
confusion  may  ensue.  Their  civil  law 
decisions  may  come  into  direct  conflict 
with  decisions  of  ecclesiastical  tribunals 
in  matters  of  which  the  latter  have  un- 
doubted cognizance.  Then  it  may  be- 
come necessary  for  a  court  of  law  to 
determine  who  are  proper  officers  of  the 
church,  and  even  whether  persons  excom- 
municated are  not  still  church  members, 
and  entitled  to  all  their  rights  as  such  ; 
a  power  which  civil  courts  have  never 
claimed.  I  do  not,  however,  w^ish  to  be 
understood  as  expressing  any  fixed  opin- 
ion upon  this  subject. 

When   I  say,  as   I  have  said,  tliat  the 
civil   law  does  not   interfere   with   church 


FIRST   LECTURE.  45 


organization,  or  with  questions  of  religious 
faith,  it  is  proper  I  should  call  attention  to 
an  apparent,  though  not  a  real  exception. 
Cases  sometimes   arise   in   civil   courts   in 
which  it  becomes  necessary  to  determine 
which  part  of  a  divided  church  is  entitled 
to     the    church     property,   and     where     a 
correct     decision    can     be    reached     only 
after  an  examination   of  the   order  of  the 
church,  or  its  ecclesiastical  connection,  or 
after    an    investigation    of    its    articles    of 
faith.     These  cases  most  frequently  occur 
when    a    division    has    taken    place    in    a 
church    which    is   a   member    of  a    lareer 
organization  and    subject  to  ecclesiastical 
authority    outside    of    itself.     To    such    a 
church,  property   is    sometimes    conveyed 
by  deed  or  will,  for  the  expressed  purpose 
of  maintaining  a  specified  form  of  organi- 
zation, or  while  it  remains  in  a  particular 


46  FIRST   LECTURE. 

ecclesiastical  connection,  or  it  may  be  con- 
veyed to  a  church,  the  name  of  which  im- 
plies a  certain  form  of  church  government. 
A  donor,  or  a  grantor,  has  a  right  to  give 
to  the  subject  of  his  gift  or  grant  such  a 
direction  as  he  pleases,  or  impress  upon 
it  any  religious  use  which  comports  with 
his  wishes.  Thus  property  may  be  settled 
for  the  use  of  a  Protestant  Episcopal 
Church,  or  for  the  use  of  a  German  Re- 
formed Church,  or  a  Presbyterian  Church, 
or,  still  more  specifically,  for  the  use  of  an 
Episcopal  Church  in  connection  with  the 
Southern  diocese  in  New  York,  or  for  a 
Presbyterian  Church  in  connection  with  a 
particular  General  Assembly.  In  such  a 
case  when  controversies  arise  within  the 
church  respecting  the  ownership  or  con- 
trol of  property  thus  conveyed,  and  a 
division    takes    place,    courts    of  law    will 


FIRST   LECTURE,  47 

inquire  which  party,  or  which  division, 
adheres  to  the  form  of  church  govern- 
ment, or  acknowledges  the  church  connec- 
tion designated  in  the  conveyance,  and 
adjudge  the  riglit  to  that  party.  Thus,  if 
the  grant  be  for  the  erection  or  mainte- 
nance of  a  German  Reformed  Church  in 
connection  with  the  synod  of  Pennsyl- 
vania, and  a  majority  of  its  members 
resolve  to  sever  the  connection  of  the 
church  with  that  synod,  courts  of  law  will 
decree  that  they  have  forfeited  their  right 
to  the  property,  and  will  adjudge  it  to 
the  minority  that  adheres  to  the  synod. 
So,  if  the  grant  be  for  the  use  of  a  Presby- 
terian church,  and  a  majority  of  its  mem- 
bers determine  to  become  Conereeation- 
alists,  or  Episcopalians,  or  Methodists,  the 
civil  law  will  interfere  and  protect  the  prop- 
erty for  the  exclusive  use  of  those  who  re- 


48  FIRST   LECTURE. 

main  Presb3^terians.  Such  a  church,  or 
rehgious  society  is,  in  the  eye  of  the  law, 
regarded  as  the  trustee  of  a  charity,  hold- 
ing its  property  in  trust  for  defined  per- 
sons, or  objects,  and  civil  courts  will  pre- 
vent its  diversion  to  other  persons,  or  other 
uses.  It  may  then  be  said  generally,  that 
the  law  will  not  recognize  any  right  in  a 
church  endowed  in  connection  with  a  larger 
ecclesiastical  organization,  and  in  subordi- 
nation to  it,  or  endowed  with  reference  to 
any  form  of  church  order,  or  government, 
to  unite  with  any  other  organization,  or  to 
become  independent,  or  to  abandon  its 
order  and  adopt  another.  If  it  makes 
such  a  change,  it  does  it  at  the  penalty 
of  losing  the  property  settled  upon  it. 
That  property  the  civil  courts  will  ad- 
judge to  those  members,  however  few 
in  number  they  may  be,  who  continue  to 


FIRST   LECTURE.  49 

act  in  accordance  with  the  ecclesiastical 
connection  and  church  order  which  were 
accepted  when  the  endowment  was  made  ; 
and  which  were  in  contemplation  of  the 
donor  or  Qrrantor.  Those  who  adhere  and 
submit  to  that  estabhshed  order  and  con- 
nection, are  recognized  as  the  church 
endowed,  and  the  title  to  the  property 
remains  in  them.  When  I  speak  of  a 
church  thus  endowed,  I  mean,  where  the 
church  order  or  connection  is  indicated  in 
the  instrument  by  which  the  property  was 
acquired.  This  rule  of  action,  well  estab- 
lished in  the  civil  courts  by  a  multitude  of 
decisions,  it  is  evident,  necessitates  an  in- 
quiry into  the  constitution  and  discipline 
of  the  church,  not  for  the  purpose  of  deter- 
mining whether  they  are  right  or  wrong, 
but  to  enable  the  court  to  discover  which 
of  the  contending  parties  adheres  to  the 
3 


50  FIRST   LECTURE. 

order  and  connection,  or  (which  is  the 
same  thing),  to  discover  for  whose  use  the 
settlement  was  made.  The  inquiry  is  after 
a  fact  essential  to  the  identification  of  the 
grantee,  and  that  fact,  whatever  it  may  be, 
when  ascertained,  becomes  controlling. 

The  same  reason  which  leads  to  such 
an  investigation,  namely,  that  civil  courts 
will  not  permit  the  diversion  of  a  trust, 
even  when  held  by  a  religious  society, 
justifies  also,  in  some  cases,  an  inquiry 
into  the  articles  of  faith  or  doctrines  held 
by  a  particular  church,  or  by  some  of  its 
members.  When  property  is  held,  charged 
with  a  trust  for  the  use  of  a  church  receiv- 
ing and  maintaining  certain  religious  doc- 
trines, it  occasionally  happens  that  its 
members  depart  from  the  faith,  and  em- 
brace other  and  contrary  doctrines,  while 
still    claiming    to   hold    the    property.     In 


FIRST    LECTURE.  5  I 


such  a  case,  very  plainly,  if  the  property 
can  be  retained  by  them,  it  is  diverted  from 
the  use  to  which  it  was  first  settled,  and 
the  intent  of  the  donor  or  grantor  is  de- 
feated. Such  a  perversion  the  civil  law 
will  not  allow.  It  will  interpose  its  strong- 
est  arm  to  arrest  it.  Here,  too,  as  before, 
the  primary  inquiry  is,  has  there  been  a 
violation  of  the  trust }  And  that  inquiry 
can  be  answered  only  when  it  has  been 
ascertained  what  the  doctrines  were,  to  the 
maintenance  and  propagation  of  which  the 
church  property  was  devoted,  and  whether 
there  has  been  a  departure  from  those  doc- 
trines by  those  who  claim  a  right  to  the 
property. 

It  was  early  laid  down  by  a  celebrated 
British  chancellor  (Lord  Eldon),  and  such 
is  now  the  accepted  law  of  England,  that 
in  internal  controversies  respecting  rights 


52  FIRST   LECTURE. 

to  church  property,  it  is  the  duty  of  a 
court  (a  civil  court),  to  decide  in  favor  of 
those,  whether  a  minority  or  a  majority  of 
the  congregation,  who  are  adhering  to  the 
doctrine  professed  by  the  congregation,  and 
the  form  of  worship  in  practice,  and  also  to 
the  form  of  church  government  in  opera- 
tion in  the  church,  with  which  the  con- 
gregation was  connected,  at  the  time 
the  trust  was  declared.  It  may  perhaps 
be  doubted  whether  all  this  is  true  in 
its  fullest  extent  in  this  country.  But  it  is 
true  that  when  a  settlement  of  property  has 
been  made  for  the  use  of  a  church  which 
holds  specified  doctrines,  those  members 
only  have  an  interest  in  the  property,  that 
hold  those  doctrines,  if  it  can  be  gathered 
from  the  settlement  that  the  maintenance 
of  those  doctrines  was  intended ;  and  a 
civil  court  will  do  whatever  is  necessary,  in 


FIRST    LECTURE.  53 


case  of  a  division,  to  ascertain  which  party 
holds  them. 

Now,  as  I  have  ah'eady  said,  church 
endowments  are  clothed  with  an  almost 
boundless  variety  of  trusts,  relating  not 
only  to  church  organization,  ecclesiastical 
connection,  form  of  government,  or  order 
of  worship,  but  to  doctrine  and  articles  of 
faith.  Property  may  be  settled  for  the  use 
of  a  Trinitarian  church,  or  of  an  Univer- 
sahst  church,  or  of  a  church  holdino-  and 
teaching  the  doctrine  of  total  depravity,  or 
of  one  repudiating  the  doctrine  of  election, 
or  of  one  that  accepts  the  Heidelberg  cate- 
chism, or  of  one  that  believes  only  Stern- 
hold  and  Hopkins'  version  of  the  Psalms 
ought  to  be  used  in  pubhc  worship.  These 
ai-e  specimens  of  trusts  that  may  be  created. 
They  are  all  lawful,  and  civil  courts  will 
enforce  them  as  made.     Every  church,  or 


54  FIRST   LECTURE. 

portion  of  a  church,  or  rehgious  society, 
holding  property  must  comply  with  the 
conditions  expressed  or  implied  in  the  set- 
tlement. Take  a  single  illustration.  If  a 
Trinitarian  church  upon  which  such  a  set- 
tlement has  been  made — a  settlement  mani- 
festly having  in  view  Trinitarian  doctrines — 
departs  from  its  faith,  if  a  majority  of  its 
members  become  Unitarians,  they  forfeit 
all  right  to  the  property,  and  civil  courts 
will  adjudge  the  whole  to  the  minority 
(however  small)  who  remain  Trinitarians. 
Religious  faith  is  thus  recognized  and 
acted  upon  as  a  sufficient  foundation  for  a 
legal  trust. 

There  are  some  cases,  however,  of 
more  difficulty.  They  are  those  in  which 
the  trust  has  not  been  so  accurately  de- 
fined. Let  me  state  an  example.  The 
grant  may  have  no  expressed  reference  to 


FIRST   LECTURE.  55 

any  single  doctrine.  Suppose  it  be  made 
to  a  church  adhering  to  the  creed  of  the 
German  Reformed  Church,  or,  still  more 
loosely,  for  the  erection  and  support  of  a 
German  Reformed  church,  without  more. 
Courts  of  law  hold  such  a  grant  as  creat- 
ing a  trust.  But  what  trust  ?  I  answer, 
one  that  is  twofold  in  its  nature.  First,  it 
is  for  the  use  of  a  church  that  is  German 
Reformed  in  its  form  of  government,  its 
order,  and  its  discipline.  Secondly,  it  is 
for  a  church  that  holds  the  creed  or  arti- 
cles of  faith  accepted  by  the  German  Re- 
formed Church  generally  when  the  grant 
was  made.  Both  form  and  doctrine  are 
essential  to  the  existence  of  a  church. 
Hence  in  enforcing  such  a  trust,  and  pro- 
tecting it,  not  only  is  the  form  of  the  bene- 
ficiary to  be  considered,  but  it  is  indis- 
spensable   to    inquire  what  were  the  doc- 


56  FIRST    LECTURE. 

trines  of  the  church  when  the  trust  was 
stamped  upon  the  property,  and  what  are 
the  accepted  doctrines  of  those  w^ho  claim 
to  be  beneficiaries.  If  there  has  been  any 
material  departure  from  the  acknowledged 
standards  of  faith  existinor  when  the  trust 
was  founded,  those  who  have  thus  departed 
are  no  longer  owners,  and  they  will  not  be 
recognized  as  such  by  courts  of  law.  They 
will  be  compelled  to  surrender  the  whole 
to  those  who  adhere  to  the  standards,  and 
if  all  have  departed  the  property  will 
revert  to  the  donor. 

I  am  aware  it  was  said  by  a  well-known 
judge,  when  delivering  the  opinions  of  the 
highest  court  in  one  of  the  States,  this  rule 
is  not  to  be  interpreted  as  meaning  that  no 
church  or  religious  organization,  to  which 
such  a  grant  has  been  made,  can  change 
any    material    part    of    its    principles,    or 


FIRST   LECTURE.  57 

practices  without  forfeiting  its  property. 
"  This,"  said  he,  "  would  be  imposing  a  law 
upon  all  churches  that  is  contrary  to  the 
very  nature  of  all  intellectual  and  spiritual 
life,  for  it  would  forbid  both  growth  and 
decay ;  not  prevent,  for  that  is  impossible. 
The  guarantee  of  freedom  to  religion,"  he 
added,  ''  forbids  us  to  understand  the  rule 
in  that  way."  From  this  I  earnestly  dis- 
sent. It  w^as  but  the  opinion  of  a  single 
judge  ;  not  necessary  to  the  case  decided, 
and  it  is  in  conflict  with  all  the  well-con- 
sidered decisions  in  this  country  and  in 
England.  In  commenting  upon  it,  another 
judge  has  said,  "  Civil  courts  which  have 
the  supervision  and  control  of  all  corpora- 
tions, and  unincorporated  religious  soci- 
eties or  associations,  in  matters  of  prop- 
erty must  be  guided  by  plainer  princi- 
ples than  those  to  be  found  in  the  nature 
3* 


58  FIRST   LECTURE. 

of  intellectual  and  spiritual  life.  And  the 
constitutional  guaranty  of  religious  free- 
dom has  nothing  to  do  with  the  property. 
It  does  not  guarantee  the  privilege  of 
stealing  churches,  or  perverting  truths,  or 
defeatino;  the  will  of  a  donor.  It  secures 
to  individuals  the  right  of  withdrawing 
from  a  church,  forming  a  new  society,  with 
such  creed  and  government  as  they  may 
choose  to  adopt,  raising  from  their  own 
means  another  fund  ;  and  building  another 
house  of  worship.  But  it  does  not  confer 
upon  them  the  right  of  taking  property 
consecrated  to  other  uses  by  those  who 
may  be  sleeping  in  their  graves."  67  Penn, 
State,  147. 

It  may  then,  I  think,  be  considered  as 
undeniable  that  in  all  controversies  respect- 
ing the  right  to  church  property,  when  the 
deed  or  will  by  which  it  has  been  acquired 


FIRST    LECTURE. 


indicates  that  it  was  the  intention  of  the 
grantor  or  devisor  the  beneficial  use  of  the 
property  should  vest  in  a  church  having  a 
specified  form  of  government,  or  connec- 
tion, or  form  of  worship  ;  or  holding  cer- 
tain doctrines,  courts  of  law  will  institute 
all  the  inquiries  necessary  to  determine 
who  were  the  real  beneficiaries  intended, 
and  prevent  the  diversion  of  the  property 
to  any  other  uses.  And  in  so  doing  they 
will,  if  necessary,  investigate  the  doc- 
trines held,  or  the  religious  behef  of  the 
members,  not  for  the  purpose  of  passing 
upon  their  soundness,  or  unsoundness, 
but  to  identify  the  persons  for  whose 
use  the  grant  or  gift  was  originally 
intended. 

Of  course  what  I  have  said  has  no 
application  to  a  case  where  the  property  is 
held  by  a  church,  or  religicus  society,  with 


6o  FIRST   LECTURE. 

no  specific  trust  attached  to  it,  or  with  no 
other  than  that  it  is  for  a  rehgious  use 
generahy.  Such  cases  sometimes  arise  in 
independent  churches,  governed  solely  by 
themselves,  either  by  a  majority  of  their 
members,  or  by  some  authority  within 
them,  instituted  solely  by  the  members. 
When  in  such  a  church  the  right  to  the 
property  is  in  dispute  between  two  divi- 
sions, the  majority  will  control,  unless  some 
internal  authority  has  been  constituted  by 
general  assent  to  decide.  Courts  of  law 
will  not  interfere  farther  than  to  give  effect 
to  the  will  of  the  majority,  expressed  by 
themselves  or  by  their  agents. 

I  have  thus  endeavored,  briefly  as 
possible,  and  quite  superficially,  I  know, 
to  exhibit  how^  far  the  courts  of  civil  law 
will  enter  the  domain  of  the  church.     To 


FIRST   LECTURE.  6l 

sum  up  what  I  have  said  upon  this  point, 
even  at  the  hazard  of  repetition,  I  may 
say  that  civil  courts  will  not  interfere  with 
any  church  organization,  connection,  order, 
discipline,  or  doctrine,  nor  will  it  interfere 
with  the  ownership  of  church  property, 
except  to  enforce  its  being  held  in  strict 
subordination  to  the  uses  to  which  it  was 
devoted  when  it  was  acquired. 

In  saying,  as  I  have  said,  that  the  civil 
law  will  not  undertake  to  determine  who 
are  the  officers  of  the  church,  I  must  be 
understood  as  having  spoken  only  of 
strictly  church" officers.  There  are  officers 
of  religious  societies,  officers  in  whom  fre- 
quently the  legal  titles  to  the  church  pro- 
perty is  vested,  over  whom,  and  over  whose 
actions  courts  of  law  claim  and  exercise 
jurisdiction.  I  speak  of  trustees  of  the 
church    property.     Many    religious    socie- 


FIRST    LECTURE. 


ties  are  incorporated,  and  such  corpora- 
tions are  as  much  under  the  control  of  the 
civil  law,  as  are  any  other  corporate  organ- 
izations. They  are  trustees  of  the  prop- 
erty vested  in  them.  In  other  cases  the 
property  is  held  by  natural  persons  as 
trustees  for  the  unincorporated  church,  or 
unincorporated  religious  society.  The 
trustees  may  have  been  designated  by  the 
founder  of  the  trust,  or  elected  by  the 
members  of  the  church,  or  of  the  society 
out  of  which  the  church  has  been  gathered. 
To  determine  rights  of  property,  it  is  often 
necessary  to  decide  who  those  trustees  are, 
and  consequently  to  inquire  unto  the  valid- 
ity of  the  election  of  those  claiming  to 
have  been  elected.  Such  inquiries  are 
conducted  precisely  as  similar  ones  are, 
when  the  title  of  officers  of  lay  corporations 
is  called  in  question.     It  is  competent  for 


FIRST    LECTURE.  63 

a  civil  court  to  review  the  election,  and  not 
only  to  decide  who  received  the  greatest 
number  of  votes,  but  to  pass  upon  the 
qualifications  of  the  electors.  If  none  but 
church,  members  may  vote,  the  court  can 
determine  whether  those  w^io  voted  were 
church  members,  but  the  rule  for  such 
determination  must  be  that  which  the 
church  has  ordained.  They  must  be  con- 
sidered members  whom  the  church  recoof- 
nizes  as  such.  So  even  in  a  case  vdiere 
there  is  no  direct  question  of  property  in 
issue  a  civil  court  will  eject  a  person  not 
lawfully  elected  from  an  office  into  which 
he  has  intruded. 

The  General  Assembly  of  the  Presby- 
terian Church  has  a  board  of  trustees,  who 
are  elected  by  the  Assembly.  They  are  a 
corporate  body,  having  charge  of  the  prop- 
erty of  the  church,  holding  it,  and  man- 


64  FIRST    LECTURE. 

aging  it  for  the  use  of  the  church.  It  may 
become,  it  has  become,  in  the  past,  a  ques- 
tion whether  some  of  those  trustees  were 
duly  elected,  and  empowered  to  act  as 
such.  This  is  not  a  question  of  ecclesias- 
tical law;  it  is  exclusively  within  the  juris- 
diction of  the  civil  courts.  But  it  must  be 
observed  that  neither  these  nor  the  trus- 
tees of  any  single  church,  or  religious 
association  are  church  officers.  They 
have  charge  of  the  temporalities  only,  not 
at  all  of  the  spiritual  interests.  The 
acknowledged  authority  which  courts  of 
civil  law  exercise  over  them  is  not  therefore 
in  any  manner  inconsistent  with  the  asser- 
tion I  have  made  that  such  courts  will  not 
try  or  decide  who  are  church  officers,  but 
will  leave  that  question  to  be  answered 
by  the  church  itself,  and  will  accept  the 
answer. 


FIRST    LECTURE.  65 

Thus  far  I  have  spoken  mainly  of  the 
church  only,  and  of  the  relation  in  which 
it  stands  to  the  civil  law.  I  have  noticed 
the  religious  society,  within  which  the 
church  is  generally  a  distinct  organization, 
only  incidentally,  for  the  purpose  of  exhibi- 
ting how  far  the  civil  law  will  take  cogni- 
zance of  the  constitution,  order,  doctrines, 
and  discipline  of  the  church.  I  propose 
now  to  submit  some  observations  respect- 
ing religious  societies.  They  may,  with 
sufficient  accuracy,  be  defined  to  be  volun- 
tary associations  of  individuals  or  families 
united  for  the  purposes  of  having  a  com- 
mon place  of  worship,  providing  teachers 
for  instruction  in  religious  doctrines  and 
duties,  as  well  as  for  the  administration  of 
the  ordinances  of  the  church,  and  generally 
to  support  the  cause  of  morality  and  reli- 
gion in  the  neighborhoods  where  they  are 


66  FIRST   LECTURE. 

formed.  What  constitutes  membership  is 
defined  by  the  will  of  the  associates,  and 
what  shall  be  the  rights  of  members  is  also 
the  subject  of  their  agreement.  They  are 
not  to  be  assimilated  to  parishes,  for  they 
have  ordinarily  no  geographical  limits. 
Being  voluntary  associations  they  may 
adopt  such  rules  for  their  government  as 
their  wishes  may  dictate,  subject  only  to 
such  restrictions  as  their  charters  may 
impose  upon  them,  if  they  are  incorporated. 
Many  religious  societies  in  this  country 
are  incorporated.  Many  others  have  no 
corporate  existence.  In  most  of  the  States 
statutes  have  been  enacted  providing  an 
easy  mode  by  which  religious  societies 
may  become  incorporated,  at  small  expense, 
and  when  no  such  mode  has  been  adopted 
the  legislature  is  competent  to  incorporate 
them,  though   it  cannot  compel    their   ac- 


FIRST   LECTURE.  6/ 

ceptance  of  a  corporate  existence.  The 
act  of  incorporation  brings  with  it  very 
considerable  advantages.  It  endows  the 
corporators  with  a  name,  by  which  they 
may  sue  and  be  sued  in  the  civil  courts. 
It  gives  them  perpetual  existence.  It 
enables  them,  however  numerous,  to  act  as 
one  person,  and  it  simplifies  greatly  their 
tenure  of  property.  The  powers  of  such 
corporations  are  generally  defined  by  their 
charter,  and  the  officers,  or  agencies  by 
which  they  are  permitted  to  act  are  also 
defined.  They  are  almost  always  allowed 
to  hold  property  for  the  use  of  the  society 
and  the  church  connected  with  it,  and 
generally  to  manage  the  church  temporali- 
ties. But  an  incorporated  religious  society 
is  not  an  ecclesiastical  corporation,  in  the 
sense  of  the  English  law.  Such  an  organ- 
ization   is  composed  of  spiritual  persons, 


6S  FIRST    LECTURE. 

and  its  object  is  also  spiritual.  A  religious 
society  incorporated  is  regarded,  with  us, 
as  a  civil  corporation,  as  much  so  as  is  a 
railroad  company,  a  bank,  or  an  insurance 
company.  Hence  it  is  governed  by  the 
law  precisely  as  other  corporations  are. 
It  is  subject  to  visitation,  as  others  are. 
Intrusion  into  its  offices  may  be  remedied 
by  an  appeal  to  the  civil  courts,  and  it  will 
be  restrained  from  appropriation  of  the 
property  held  by  it  to  other  uses  than 
those  to  subserve  which  it  was  created. 
It  would  be  impossible,  in  the  time  which 
I  have,  to  state  -minutely  the  provisions  of 
law  respecting  such  corporations.  They 
differ  greatly  in  the  different  States,  because 
the  provisions  of  the  charters  are  various, 
and  because  they  have  been  more  or  less 
the  subjects  of  State  legislation.  I  can  do 
no  more  than  call  attention  to  some  things 


FIRST    LECTURE.  69 


in  regard  to  which  there  is  general  con- 
currence of  opinion.  A  rehgious  corpora- 
tion may  take,  either  by  deed  or  will,  real 
and  personal  property  to  an  amount  Hmited 
by  law.  The  statutes  of  the  States,  inher- 
iting the  jealousy  of  large  accumulation  of 
property  in  the  hands  of  ecclesiastical  per- 
sons and  religious  houses  which  was  so 
o-reat  an  evil  in  EuGfland  before,  and  even 
subsequent  to  the  Reformation,  have  in 
many  cases  enacted  that  no  religious 
society  shall  be  incorporated,  with  power 
to  hold  property  yielding  a  greater  annual 
income  than  a  specified  sum.  Of  course, 
where  this  is  the  law  of  the  State,  property 
acquired  by  such  a  corporation  beyond 
the  sum  limited  is  liable  to  escheat  to  the 
commonwealth.  Within  that  limit  there 
is  the  same  freedom  of  acquisition  which 
belongs  to  a  natural  person.     And  where 


70  FIRST   LECTUR'E. 

property  has  been  held  for  the  ase  of  an 
unincorporated  religious  society,  it  will, 
upon  its  subsequent  incorporation  become 
vested  at  once,  by  force  of  the  law,  in  that 
corporate  body.  No  conveyance  is  neces- 
sary. So  an  agreement  with  individual 
members  of  a  society  to  convey  land  to 
them  for  the  site  of  a  church  may  be 
enforced  after  they  are  incorporated,  and 
a  conveyance  will  be  decreed  to  the  cor- 
porate body. 

Religious  corporations  are  also  very 
frequently  authorized  to  purchase  and  hold 
land  for  a  burial-ground  or  cemetery,  and 
to  improve  it,  though  they  have  generally 
no  power  to  hold  lands  for  any  other  than 
religious  uses. 

In  these  rights,  as  in  all  others,  they  are 
protected  by  the  law,  while  they  are  re- 
strained   from    transgressing    the    powers 


FIRST   LECTURE.  7 1 

vested  in  them,  and    especially  from  per- 
verting the  trusts  they  hold. 

A  very  large  portion  of  the  religious 
societies  in  the  country  are  unincor- 
porated, and  in  a  few  of  the  States  charters 
cannot  be  obtained  for  them.  They  are 
therefore  not  legal  entities,  recognized  as 
having  a  legal  existence.  They  can 
neither  sue,  nor  be  sued  in  civil  courts. 
They  cannot  hold  property  directly.  Yet 
they  may  control  property  held  by  others 
for  their  use.  Donations  and  grants  may 
be  legally  made  to  trustees  for  the  use  and 
benefit  of  an  unincorporated  religious 
society,  or  for  the  support  of  the  Gospel 
ministry  in  connection  with  any  particular 
church.  Any  person  capable  of  disposing 
of  his  property  can  create  a  trust  for  such 
a  purpose,  and,  if  the  trust  is  properly 
created,  it  will  not  fail  for  want  of  a  trus- 


72  FIRST   LECTURE. 

tee,  for  it  is  a  rule  in  courts  of  equity  that 
no  legal  trust  shall  fail  because  there  is  no 
trustee.  In  such  a  case  the  court  will 
raise  up  one.  This  is  an  important  princi- 
ple often  called  into  requisition  where 
churches  and  relio-ious  societies  exist  with- 
out  the  aid  of  corporate  charters.  In  all 
the  States  the  institutions  of  reliction  are 
regarded  as  essential  to  the  public  well- 
being,  and  hence  trusts  for  pious  and  re- 
ligious purposes  are  looked  upon  with 
great  favor  by  the  courts. 

The  law  of  charities,  at  a  very  early 
period  in  English  judicial  history,  was 
ingrafted  upon  the  common  law,  and  was 
held  to  be  applicable  to  trusts  for  reli- 
gious uses  ;  and  we  have  upon  this  subject 
adopted  generally  the  maxims  of  the 
English  law.  It  is  only  necessary  that  a 
gift,  devise,  or  grant    be  made  to  trustees 


FIRST    LECTURE.  73 

capable  of  taking  the  legal  estate,  and 
that  the  objects  of  the  trust  be  defined, 
or  capable  of  being  ascertained.  Even  if 
the  trustees  be  incapable  of  taking,  if  the 
conveyances  be. for  charitable  or  religious 
uses,  they  will  be  supported  by  courts  of 
equity.  It  follows  from  this  that  a  bequest 
for  the  benefit  of  a  religious  society,  though 
it  names  no  trustee,  is  valid.  So  is  a 
bequest  for  the  benefit  of  poor  ministers 
of  a  specified  religious  denomination, 
though  no  persons  are  appointed  to  take 
and  distribute  the  fund.  A  court  of 
equity  will  raise  up  agents  to  make  the 
distribution.  I  have  not  time,  however, 
now  to  2fo  further  into  the  law  of  charities 
as  afifectino^  relio-ious  societies.  The  sub- 
ject  is  a  fruitful  and  interesting  one,  but  I 
must  reserve  what  I  have  to  say  on  this 
subject  for  a  future  occasion.  It  will  be 
4 


74  FIRST   LECTURE. 

seen  that,  even  when  not  incorporated,  the 
common  law  doctrine  of  trusts  for  reHo'ious 

o 

purposes  affords  such  associations  much 
protection,  and  enables  them  without 
great  embarrassments  to  support  church 
ordinances. 

It  is  very  important,  however,  in  all 
grants  for  the  use  of  an  unincorporated 
religious  society  that  the  extent  of  the 
powers  of  the  trustee  should  be  well  de- 
fined, and  the  nature  and  objects  of  the 
trust  should  be  clearly  specified.  It  pre- 
vents disagreenient  and  litigation.  But 
if  they  are  not,  if  they  are  left  indefinite, 
the  trustee  may  always  apply  to  civil 
courts  of  equity  for  direction,  and  it  will 
readily  and  authoritatively  be  given. 

I  need  hardly  add  that  the  law  will 
prevent  a  perversion  of  a  trust  in  favor  of 
a  religious  society,  as  efiiciently  as  it  will 


FIRST    LECTURE.  75 


protect  any  other  trust,  and  courts  will  go 
very  far  to  ascertain  what  the  trust  is.  In 
one  case,  where  a  deed  had  been  made  for 
the  use  of  a  congregation  of  Christians, 
designating  the  congregation  by  the  name 
of  a  sect,  or  denomination,  without  any 
other  specification  of  the  rehgious  worship 
intended,  it  was  held  that  the  intent  of 
the  donors,  or  founders,  in  that  respect, 
might  be  impUed  from  their  own  religious 
tenets,  from  the  prior  and  contemporary 
usage,  tenets,  and  doctrines  of  the  congre- 
gation, and  from  the  usage,  tenets,  and 
doctrines  of  the  sect,  or  denomination,  to 
which  such  congregation  belonged.  It 
was  also  held  that  in  ascertaining  the  early 
and  contemporary  usage  and  doctrines  of 
such  sect,  resort  might  be  had  to  history, 
and  to  standard  works  of  theology  of  an 
era  prior  to  the  origin  of  the  dispute  or 


76  FIRST   LECTURE. 

controversy.  This  ruling,  I  apprehend,  is 
in  accordance  with  the  general  practice  of 
civil  courts. 

I  may  not  now  pursue  this  subject 
farther.  There  are  other  matters  relating 
to  the  discipline  and  property  of  the  church 
in  this  country,  of  which  the  civil  law  takes 
cognizance.  The  most  important  are  the 
application  of  the  law  of  charities,  the 
legal  effect  of  by-laws  of  religious  corpora- 
tions, the  tenure  of  church  property,  the 
rights  of  pew-holders  in  church  edifices, 
and  other  things  of  a  kindred  nature. 
What  I  have  to  say  respecting  these  must 
be  reserved  for  another  lecture. 


SECOND    LECTURE. 


Gentlemen  of  the  Seminary  : — 

On  a  former  occasion  I  called  your 
attention  to  the  fact  that  what  civil  law 
lawyers  denominate  the  law  of  charities 
has  an  intimate  relation  to  church  property 
in  this  country.  I  propose  now  to  add 
some  remarks  respecting  the  history  of 
this  law,  and  its  application  by  civil  courts 
to  the  property  of  churches  and  religious 
societies.  Its  importance  can  hardly  be 
over-estimated.  The  law  of  trusts  and 
the  law  of  charities,  closely  connected  as 
they  are,  constitute  the  protection  of  our 
churches,  so  far  as  they  hold  and  enjoy 
property. 


78  SECOND   LECTURE. 

It  is  generally  believed,  and  probably 
the  belief  is  well  founded,  that  the  origin 
of  the  law  of  charities  must  be  sought  for 
in  an  age  long  anterior  to  the  time  when 
the  common  law  of  England  came  into 
existence.  It  is  undoubtedly  one  of  the 
legacies  bequeathed  to  modern  times  by 
Roman  civilization.  Traces  of  it  are  found 
very  early  in  the  decisions  of  the  British 
courts,  thouQ^h  it  was  not  until  the  reiorn 
of  Elizabeth  that  the  system  of  law,  now 
so  well  understood  and  so  important  to  the 
welfare  of  the  community,  had  grown  into 
any  considerable  degree  of  completeness. 
Charities  were  known,  doubtless,  before 
the  Christian  era ;  but,  so  far  as  is  known, 
they  were  not,  before  that  period,  the  sub- 
jects of  municipal  or  civil  regulation.  In 
the  beginning  of  the  fourth  century 
(a.  d.  315),    Constantine,   the    first    Chris- 


SECOND    LECTURE.  79 


tian  Roman  Emperor,  granted  permission 
to  his  subjects  to  bequeath  their  property 
to  the  church,  and,  as  a  consequence  of 
this  permission,  such  bequests  began  at 
once  to  be  very  largely  made.  Indeed 
almost  immediately  so  much  property 
came  by  devise  into  the  ownership  of  the 
church,  for  various  purposes  designated  by 
the  donors,  or  testators,  for  the  erection 
of  buildings,  and  maintenance  of  religious 
houses  and  orders,  as  well  as  for  church 
ornaments  and  religious  uses,  that  it  was 
felt  to  be  a  great  social  evil,  and  in  the 
year  364  a  d.  the  Emperor  Valentinian 
felt  constrained  to  enact  what  is  called  a 
mortmain  law,  the  object  of  which  was  to 
prevent  the  accumulation  of  lands  by  re- 
ligious houses,  or  religious  corporations. 
The  mass  of  property  then  consisted  in 
land.     For  a  time    Valentinian's    law   re- 


80  SECOND    LECTURE. 

strained  gifts,  grants,  and  devises  of  lands 
for  religious,  pious,  or  charitable  uses. 
But  the  restraint  was  temporary.  It 
gradually  relaxed,  until  in  the  time  of  Jus- 
tinian (a.  d.  529),  it  became  a  recognized 
maxim  of  Roman  jurisprudence  that  lega- 
cies to  pious  uses  (which  included  all 
legacies  destined  for  works  of  piety,  or 
charity,  whether  they  related  to  spiritual 
or  to  temporal  concerns),  were  entitled  to 
peculiar  favor  in  the  courts,  and  were  to 
be  deemed  privileged  testaments.  In  the 
Roman  courts  the  construction  of  wills 
which  made  charitable  dispositions  of 
property,  was  far  more  liberal  than  that 
given  to  other  wills.  Charitable  legacies 
and  devises  were  never  permitted  to  be 
lost  in  consequence  of  either  the  uncer- 
tainty, or  failure,  of  the  objects  for  which 
the   testators  destined   them.     Thus,  if  a 


SECOND    LECTURE.  8 1 

legacy  or  devise  was  given  to  the  church 
generally,  or  to  the  poor  generally,  without 
any  specification  of  the  particular  church, 
or  without  designation  of  what  poor  were 
intended,  the  law  and  the  courts  sustained 
the  gift  by  awarding  the  property  to  the 
church  of  the  parish  or  neighborhood  in 
which  the  testator  lived,  or  to  the  hos- 
pital of  the  place.  In  the  time  of  Jus- 
tinian it  was  a  common  usage  to  give  by 
will  a  legacy  to  God,  and  in  such  cases  the 
courts  construed  the  legacy  to  enure  to 
the  parish.  Whenever  the  objects  of  the 
testator's  bounty  were  indefinite,  the  legacy, 
if  intended  for  a  charitable  use,  was  carried 
into  effect  by  the  court,  and  the  judge 
designated  the  persons  to  whom  the 
bounty  should  be  applied.  More  extraor- 
dinary still,  if  a  legacy  or  devise  was  given 
for  a  definite  charitable  object,  which  had 
4* 


82  SECOND    LECTURE. 

been  previously  accomplished,  or  which 
had  failed,  it  was  nevertheless  held  valid, 
and  the  property  given  was,  at  the  discre- 
tion of  the  court,  applied  to  some  other 
object,  supposed  to  be  cognate.  For  illus- 
tration, if  a  testator  had  left  a  legacy  for 
building  a  parish  church,  or  for  a  new 
apartment  in  a  hospital,  and  before  his 
death,  the  church,  or  the  new  apartment 
had  been  built,  or,  in  the  opinion  of  the 
judge,  w^as  not  necessary,  or  useful,  the 
legacy  w^as  not  allowed  to  fail,  but  it  was 
applied  to  some  other  object  of  piety,  or 
of  charity,  designated  by  the  judge,  and, 
perhaps,  never  thought  of  by  the  testator. 
These  principles  of  the  Roman  law 
were,  at  a  very  early  age,  quite  as  soon  as 
wills  were  permitted,  introduced  into  the 
common  law  of  England,  though,  perhaps, 
shorn    of    some    of   their    extravagances. 


SECOND   LECTURE.  83 


The  early  English  chancellors  were  priests 
and  bishops  of  the  Roman  Catholic 
Church.  It  was  not  until  the  reio-n  of 
Edward  Third,  (a.  d.  1340),  that  the  first 
lay  chancellor  was  appointed.  It  was 
very  natural,  it  ought  to  have  been  ex- 
pected, that  when  those  who  had  the 
charge  of  the  estates  and  testaments  of  all 
decedents — those  who  admitted  all  wills  to 
probate,  and  who  had  control  over  all 
executors  and  administrators,  were  eccle- 
siastics— it  was  natural  that  a  system  so 
favorable  to  the  church  as  the  Roman  law 
of  charities  should  meet  with  approval, 
and  should  be  adopted  as  the  law  of  the 
realm.  It  was  so  adopted.  I  do  not  say 
that  all  the  perversions  of  testamentary 
intent,  which  were  tolerated  by  the  Roman 
law,  were  ever  repeated  in  the  judicial 
history    of   England,    but    many    of  them 


84  SECOND    LECTURE. 

were,  and,  certainly  prior  to  the  reign  of 
Queen  Elizabeth,  the  construction  given 
by  the  chancellors  to  charitable  bequests 
was  sometimes  alarmingly  unreasonable — 
practically  indeed,  a  substitution  of  the  will 
of  the  judge  for  the  will  of  the  testator. 
Since  that  reign  there  has  been  less  ex- 
travagance, but  there  is  still  a  disposition 
to  go  great  lengths  in  sustaining  and 
directing  the  application  of  testamentary 
dispositions  which,  in  the  judgment  of  the 
law,  are  regarded  as  charities.  The  action 
of  courts  of  equity  in  regard  to  such  dis- 
positions has  always  been  exceptional. 
Grants,  bequests,  or  devises  for  religious 
or  charitable  uses  are  upheld,  when  similar 
grants,  bequests,  and  devises,  for  other  uses 
not  charitable,  would  fail. 

To  show  how  great  the  favor  extended 
to    charitable    gifts    is,    I     mention    some 


SECOND    LECTURE.  85 

decisions  recorded  in  the  books.  They 
are  to  the  following  effect.  Generally,  if 
a  testator  give  his  property  to  such  person 
as  he  shall  hereafter  name  as  his  executor, 
and  afterward  he  appoints  no  executor, 
or  if  he  appoint  one  and  the  person  ap- 
pointed die  in  the  life-time  of  the  testator, 
the  gift  will  fail.  Courts  hold  that  in  such 
a  case  there  is  no  person  to  take.  But  if 
a  like  bequest  be  given  to  an  executor  in 
favor  of,  or  in  trust  for,  a  charitable  use, 
the  gift  will  be  sustained,  though  no  ex- 
ecutor be  named.  Equity  will  supply  an 
executor  to  effectuate  the  charitable  intent 
of  the  donor.  So  if  a  bequest  be  given  to 
persons  to  distribute  in  charity,  and  they 
all  die  before  the  will  takes  effect,  the 
bequest  will  be  enforced,  though  it  would 
have  failed  if  made  to  the  same  persons 
for  their  own  use.     It  is  upon  this  princi- 


86  SECOND    LECTURE. 

pie  that  devises  to  persons  incapable  of 
taking  are  upheld,  when  made  for  religious 
or  charitable  purposes.  And,  generally,  it 
may  be  said  to  be  well  established  that  if 
a  devise  or  a  bequest  be  for  a  charity,  it 
matters  not  how  uncertain  the  objects  or 
persons  to  be  benefited  ma)^  be,  if  any 
mode  is  appointed  by  which  they  can  be 
designated;  nor  whether  they  are  in  esse, 
or  not,  or  whether  the  legatee  or  devisee 
be  a  corporation  capable  of  taking,  or  not. 
Civil  courts  will  sustain  the  gift  and  carry 
it  into  effect.  Such  is  now  the  law  in 
England,  and  equally  the  law  in  this 
country. 

I  have  already  called  attention  to  the 
fact  that  church  property  is  regarded  by 
the  law  as  property  devoted  to  charitable 
uses.  Observe  now  some  of  the  opera- 
tions of  the   law  of  charities  upon  church 


SECOND   LECTURE.  8/ 


rights  of  property,  as  that  law  is  adminis- 
tered by  civil  courts.  It  will  be  seen  that 
its  importance  can  hardly  be  over-esti- 
mated. A  devise  of  property  to  an  unin- 
corporated religious  society,  or  even  to  a 
deceased  person  for  the  use  of  such  a 
society,  is  good,  and  it  will  be  established 
in  a  court  of  equity.  It  has  been  decided 
that  a  gift  to  the  "  Monthly  Meeting  of 
Friends,  of  Philadelphia,"  to  be  held  by  the 
meeting  as  a  fund  for  the  distribution  of 
good  books  among  poor  people  in  the 
back  parts  of  Pennsylvania,  was  a  valid 
bequest.  This  is  a  significant  illustration 
of  the  great  value  which  the  law  of  chari- 
ties has  in  its  application  to  religious  soci- 
eties. The  monthly  meeting  was  not  in- 
corporated. It  was  a  mere  voluntary  re- 
ligious association.  It  was  incapable  of 
taking    or    holding    property   for  ordinary 


88  SECOND   LECTURE. 

uses,  but  it  was  regarded  as  competent  to 
take,  as  the  trustee  of  a  charity.  And 
what  could  have  been  more  indefinite 
than  the  description  of  the  beneficiaries  ? 
They  were  poor  people  in  the  back  parts 
of  Pennsylvania.  Many  other  similar 
decisions  have  been  made,  and  I  under- 
stand it  to  be  the  established  law  through- 
out the  country  that  unincorporated  re- 
hgious  societies  may  hold  and  manage 
property  devised  to  them  for  religious 
uses,  and  may  even  hold  as  trustees  for 
charities  of  which  they  are  made  the 
almoners.  True,  they  cannot  be  legal 
trustees,  but  courts  of  equity  will  protect 
them  in  the  enjoyment  of  such  rights,  and, 
when  necessary,  will  raise  up  legal  trus- 
tees, through  whom  they  may  act. 

And    it    is    not    necessary,   as    I    have 
already  intim.ated,  that  the  beneficiaries  of 


SECOND   LECTURE.  89 

the  charity  be  certainly  defined,  provided 
there  be  a  discretionary  power  vested 
somewhere  over  the  appHcation  of  the 
property,  and  a  rehgious  society,  though 
unincorporated,  may  be  the  appointed 
agent  to  direct,  at  its  discretion,  such 
appHcation. 

So  it  has  been  ruled  in  courts  of  law 
that  a  charitable  bequest  directly  to  ben- 
eficiaries, enures  in  some  cases  to  the 
church  organization  that  has  those  benefi- 
ciaries in  charge.  Thus  a  gift  to  the  poor 
of  a  church,  or  religious  society,  is  con- 
strued to  be  a  gift  to  the  church  or  society 
itself,  in  trust,  to  distribute  among  its  poor, 
and  the  church  is  entitled  to  claim  the 
fund.  A  gift  to  the  mission  and  schools 
of  the  Episcopal  Church,  about  to  be 
established  at  Port  Cresson  (Africa),  was 
held  to  be  a  gift  in  ease  of  The  Domestic 


90  SECOND    LECTURE. 

and  Foreign  Missionary  Society  of  the 
Protestant  Episcopal  Church  which  estab- 
Hshed  those  schools,  and  the  legacy  was 
decreed  to  that  society.  The  law  regards 
the  substance  rather  than  the  words  of  the 
gift,  and  in  favor  of  a  charity  vests  it  in 
the  party  capable  of  taking  it — in  the 
party  in  whose  ease  it  was  given. 

So  when  there  is  a  defect  in  the  deed, 
or  will,  by  which  a  charitable  use  has  been 
attempted  to  be  created,  either  in  naming 
the  party  intended  to  be  the  trustee,  or  in 
describinor  the  beneficiaries  for  whom  the 
use  was  designed,  courts  of  equity  will 
supply  the  defect,  when  it  can  be  supplied, 
''  ut  res  magis  valeat,  quam  pereat." 
Cases  often  occur  in  which  a  testator  has 
misnamed  the  church,  or  religious  society, 
for  which  he  intended  the  legacy,  but  if 
the    court    can    ascertain  with    reasonable 


SECOND   LECTURE.  9I 

certainty  what  society  he  had  in  view,  the 
legacy  will  be  sustained,  and  adjudged  to 
the  corporation  or  society  manifestly  in- 
tended. Thtts,  a  bequest  made  to  the 
"  trustees,  or  those  who  hold  the  funds  of 
the  Theological  Seminary  at  Princeton, 
New  Jersey,"  was  decided  to  be  a  gift  to 
the  "  trustees  of  the  Theological  Seminary 
of  the  Presbyterian  Church  at  Princeton," 
the  latter  being  the  corporate  name.  This 
w^as  because  there  was  no  other  body 
answering  to  the  description,  and  the  cor- 
poration was  generally  known  as  The 
Theological  Seminary  at  Princeton.  Lega- 
cies for  charitable  uses,  however,  some- 
times fail  for  want  of  a  proper  description 
of  the  legatee,  and  therefore  extreme  cau- 
tion should  always  be  exercised  in  gifts  or 
grants  to  religious  societies,  as  well  as  in 
conveyances  to    any  benevolent  organiza- 


92  SECOND    LECTURE. 

tion,  that  the  donee,  or  grantee,  be  correctly 
described.  If  the  intended  donee,  or 
grantee,  is  a  corporation,  it  has  a  name 
given  to  it  by  its  charter,  a  name  by  which 
it  is  known  in  the  law,  and  that  name 
should  always  be  used.  It  is  unsafe  to 
employ  only  a  part  of  it. 

But,  indulgent  as  the  law  of  charities  is, 
it  is  proper  I  should  remark  that  legacies 
to  religious  societies  will  not  be  sustained, 
if  they  require  the  propert}^  or  any  part 
of  it,  to  be  held  for  perpetual  accumulation. 
Churches,  I  know,  are  not  prone  to  hold 
property  for  unending  accumulation,  or  for 
accumulation  at  all,  but  gifts  are  some- 
made  for  such  a  purpose.  Perpetuities 
of  accumulation,  however,  are  the  ab- 
horrence of  the  law,  and  they  are  not  toler- 
ated even  to  support  a  charity. 

I  may  also   notice  some  statutes  that 


SECOND   LECTURE.  93 

exist  in  England,  and  some  that  are  in 
force  in  many  of  the  States  of  our  own 
federal  union.  The  British  statutes  of 
mortmain  are  not  generally  in  force  in 
this  country,  but  their  spirit  pervades  our 
common  law,  and  there  are  enactments  of 
many  of  our  legislatures,  intended  to  pro- 
tect the  sick  and  infirm  against  improvi- 
dent charitable  dispositions  of  their  prop- 
erty, near  the  close  of  life.  These  enact- 
ments declare  in  substance  that  no  charita- 
ble devise  or  bequest  shall  have  effect  as  a 
testamentary  disposition  unless  made  more 
than  a  prescribed  time  before  the  testator's 
death.  In  some  of  the  States  this  period 
is  fixed  at  thirty  days ;  in  others  it  is  ex- 
tended to  one  year.  These  are  the  only 
restraints  that  occur  to  me  now  upon  the 
right  to  settle  property  for  the  use  of  re- 
ligious and  charitable  associations,  except 


94  SECOND    LECTURE. 

that  when  such  associations  are  incor- 
porated, they  are,  as  I  have  already  re- 
marked, sometimes  prohibited  by  the  law 
of  their  being  from  holding  propert}^ 
greater  in  amount,  or  of  a  larger  annual 
value  than  the  sum  mentioned  in  their 
charters,  or  prescribed  by  the  statute  law 
of  the  State. 

Before  leaving  this  subject  I  will  add  a 
few  observations  that  may  appear  some- 
what irrelevant  to  it.  What  I  have  said  is 
enough  to  show  that  the  peculiar  law  of 
charities  is  very  closely  related  to  church 
property,  especially  to  its  acquisition  and 
use.  But  the  question  may  occur  to  you, 
What  is  a  charity,  in  contemplation  of  law  ? 
We  know  what  it  is  in  common  under- 
standing, but  what  is  its  legal  meaning  ? 
I  shall  not  attempt  to  answer  the  inquiry 
fully.     It  would  require  more  time  than  I 


SECOND   LECTURE.  95 

can  now  devote  to  it.  A  charity  has  a 
much  wider  significance  in  civil  law  than 
it  has  in  the  popular  conception.  It  is 
enough  for  my  present  purpose  to  say  that 
in  this  country  gifts  or  settlements  for  re- 
ligious uses  have  always  been  considered 
charities.  And  no  matter  how  the  prop- 
erty is  acquired,  if  the  purpose  of  its  acqui- 
sition be  the  erection  of  a  church,  or  the 
maintenance  or  propagation  of  religion, 
the  law  regards  it  as  settled  for  a  charitable 
use.  Such  was  not  always  the  law  in 
England.  Even  after  the  Reformation, 
some  such  gifts  were  denied  to  be  charities, 
and  in  the  spirit  of  religious  intolerance 
that  prevailed,  they  were  declared  to  be 
'•  gifts  for  superstitious  uses."  As  such 
they  were  condemned  by  the  courts,  and 
adjudged  to  be  void.  Indeed,  one  object 
of  the  remarkable  statute  of  the  43d  Eliza- 


96  -      SECOND    LECTURE. 

beth,  undoubtedly  was  to  distinguish  be- 
tween charitable  uses,  recognized  by  law, 
and  superstitious  uses.  The  uses  declared 
b}^  the  courts  to  be  superstitious,  were 
generally  those  created  by  Roman  Catho- 
lics, or  by  Jews.  Thus  a  legacy  to  cer- 
tain priests  and  chapels,  that  the  testatrix 
might  have  the  benefit  of  their  prayers 
and  masses, — a  bequest  for  educating  and 
bringing  up  poor  children  in  the  Roman 
Catholic  faith, — a  bequest  by  a  Jew  to 
"  apply  and  dedicate  the  revenues  thereof 
toward  establishing  a  Jesuba,  or  assembly 
for  reading  the  law,  and  instructing  people 
in  our  holy  religion,"  were  all  held  to  be 
for  superstitious  uses.  Such  decisions, 
however,  were  not  directed  against  Roman- 
ists and  Jews  only.  Non-conformists  were 
were  also  under  the  ban.  In  one  case,  a 
clergyman  of  the   established   church   be- 


SECOND   LECTURE.  97 

queathed  to  Mr.  Baxter  $600,  to  be  dis- 
tributed by  him  to  sixty  poor  ejected  min- 
isters, saying  he  did  not  give  it  them  for 
the  sake  of  their  non-conformity,  but  be- 
cause he  knew  many  of  them  to  be  pious 
and  good  men,  and  in  great  want.  He 
also  gave  ^20  more  to  Mr.  Baxter,  to  be 
laid  out  in  a  book,  called  Baxter's  Call  to 
the  Unconverted.  Strangely  enough, 
Lord  Keeper  North  decided  these  legacies 
tQ  be  for  superstitious  uses,  and  therefore 
void.  It  is  true  this  decision  was  alter- 
ward  set  aside,  and  it  is  probable  that  all 
these  legacies  would  now  be  regarded  as 
charities,  even  in  England.  Certainly 
they  would  in  this  country. 

But  it  is  far  from  being  clear  that  with 

us  a   gift    for  an   irreligious,   or  even    an 

infidel  use,    could  be    sustained.     In    the 

well  known  case  of  Vidal  vs.  Girard's  ex- 

5 


98  SECOND    LECTURE. 

ecutors,  decided  in  1844,  by  the  Supreme 
Court  of  the  United  States,  the  court  sus- 
tained as  a  charity,  a  devise  for  the  estab- 
hshment  of  a  college  for  orphans  wherein 
the  testator  directed  and  enjoined  that  no 
ecclesiastic,  missionary,  or  minister  of  anv 
sect  whatsoever,  should  ever  hold  or  exer- 
cise any  station  or  duty,  and  that  no  such 
person  should  ever  be  admitted  for  any 
purpose,  or  as  a  visitor  within  the  premises 
appropriated  to  the  purposes  of  the  said 
college.  The  devise  was  vigorously  at- 
tacked by  most  eminent  counsel,  on  the 
ground  that  the  plan  of  education  directed 
by  it  was  derogatory  to  the  Christian  re- 
ligion, tending  to  weaken  men's  respect  for 
it,  and  their  conviction  of  its  importance, 
subverting  the  only  foundation  of  public 
morals,  and  therefore  mischievous  and 
undesirable.     On  the  other  side  the  devise 


SECOND.   LECTURE.  99 

was  defended  by  equally  eminent  counsel ; 
and  it  was  denied  that  such  was  the  ten- 
dency of  the  plan.  But  throughout  the 
whole  argument,  as  well  as  in  the  opinion 
of  the  court,  it  appears  to  have  been  as- 
sumed that  had  the  will  been  truly  obnox- 
ious to  the  objection  urged  against  it,  had 
ic  intended  the  establishment  of  an  irre- 
ligious or  infidel  college,  the  devise  might 
not  have  been  a  valid  charity.  That  in- 
deed was  not  the  decision,  but  the  case 
leans  in  that  direction.  And  in  two  cases 
at  least  in  the  highest  courts  of  two  of  the 
States,  it  has  been  more  than  intimated 
that  a  gift  in  trust  for  the  support  and 
propagation  of  irreligion  and  infidelity 
cannot  be  supported.  I  do  not  perceive 
how  it  could  be,  as  a  charity,  entitled  to 
the  protection  of  the  law  of  charities. 

But   I   have  dwelt  too  long  upon  this 


100  SECOND   LECTURE. 


subject.  My  apology  must  be  that  in  the 
law  of  charities  is  found  the  chief  pro- 
tector of  church  property,  and,  when  as- 
sociated with  the  law  of  trusts,  the  chief 
regulator. 

I  invite  your  attention  now^  to  some 
matters  which  relate  to  the  tenure  by 
which  church  property  may  be  held. 
Upon  this  subject  not  much  is  needed. 
The  simplest,  and,  as  I  have  heretofore 
said,  the  best  mode  of  holding  such  prop- 
erty is  by  the  agency  of  a  corporation 
whenever  the  laws  of  the  States  permit 
the  incorporation  of  religious  societies. 
The  powers  of  such  a  corporation  are,  of 
course,  only  those  which  are  conferred  by 
its  charter,  it  being  a  well  settled  principle 
of  law  that  no  corporation  is  deemed  to 
possess  any  other  power  than  that  which 


SECOND   LECTURE.  lOI 

is  expressly  granted,  or  given  by  necessary 
implication.  In  obtaining  a  charter,  there- 
fore, while  it  is  undesirable  that  much 
detail  of  regulation  should  be  inserted  in 
it,  it  is  important  that  it  should  confer  all 
necessary  powers  to  hold  and  manage 
property  for  the  uses  intended.  Corpo- 
rate organization  not  only  gives  perpetual 
legal  existence  to  an  artificial  being,  ca- 
pable of  taking,  holding,  and  managing 
both  real  and  personal  property,  but  it 
enables  all  the  corporators  to  act  as  an 
unit  in  all  matters  in  which  they  are  inter- 
ested relating  to  the  purposes  of  their 
organization.  To  a  church,  or  religious 
society,  incorporated,  lands  or  other  prop- 
erty may  be  directly  conveyed,  and  when 
thus  conveyed,  they  may  be  used  freely 
and  unrestrictedly,  except  that  they  can- 
not be  diverted  to  other  objects  than  those 


102  SECOND    LECTURE. 

for  which  the  property  was  at  first  destined. 
But  I  think  it  may  be  laid  down  as  true, 
that  an  incorporated  rehgious  society 
would  not  be  permitted  by  the  law  to 
hold  property  for  any  other  than  religious 
or  charitable  uses.  Such  a  holding  would 
be  regarded  as  foreign  to  the  purposes 
for  which  the  corporate  existence  was 
given.  While  a  grant,  or  a  devise,  might 
be  made  to  it  for  the  support  of  the  Gospel, 
or  for  any  religious  use,  or,  perhaps,  for 
any  use  that  the  law  recognizes  as  charita- 
ble, it  could  not  be  made  a  trustee  for  any 
use  not  religious  or  charitable.  Many 
trusts,  known  and  recognized  by  the  law, 
are  trusts  for  natural  persons  and  secular 
purposes.  John  Stiles  holds  land  in  trust 
for  Richard  Roe,  the  latter  being  entitled 
to  the  rents,  issues,  and  profits.  Such  a 
trust    an    incorporated    religious   society 


SECOND   LECTURE.  I03 

cannot  generally  hold.  Nor  can  it  be  the 
executor  of  a  will,  though  it  may  be  a 
devisee,  or  a  legatee. 

The  charters  of  church  corporations 
exhibit  o-reat  varieties.  In  some,  the  mem- 
bers  of  the  church  itself,  and  only  they,  are 
the  corporators.  They  alone  have  the 
right  to  elect  the  officers  and  managers. 
In  others  the  members  of  the  corporation 
may  be  the  associates  in  the  religious 
society,  and  not  necessarily  members  of 
the  church,  for  the  use  of  which  the  cor- 
poration is  authorized  to  hold  property. 
In  others  still,  the  officers,  managers,  or 
agents  may  be  elected  or  appointed  by  an 
external  organization,  none  of  the  mem- 
bers of  which  are  members  of  the  corpora- 
tion. In  the  case  of  sinHe  churches  this 
is  not  common,  but  there  are  such  in- 
stances in  the  church  at  large.     The  trus- 


104  SECOND   LECTURE. 

tees  and  managers  of  the  corporation,  "The 
trustees  of  the  General  Assembly  of  the 
Presbyterian  Church  "  are  elected,  not  by 
any  members  of  the  corporation,  but  by 
the  General  Assembly.  Some  of  the 
boards  of  the  church  have  no  membership. 
Their  officers  are  appointed  by  an  exterior 
authority.  These  differences  of  structure 
arise  out  of  the  organic  laws  or  charters 
which  have  been  obtained  from  the  State. 
They  are  immaterial  to  the  tenure  of  the 
property.  They  relate  rather  to  its  man- 
agement. It  is  the  corporation  that  holds 
the  property.  In  that  the  title  is  vested. 
That  only  can  sue  for  injuries  to  it.  That 
only  can  sell  it.  Individual  members  of 
the  church,  or  even  of  the  corporation,  have 
no  legal  interest  in  the  property.  They 
may  control  its  use  through  the  corpora- 
tion, but  they  are  not  owners. 


SECOND   LECTURE.  I05 

A  second  mode  in  which  church  prop- 
erty is  often  held,  is  by  unincorporated 
trustees  who  hold  the  title  for  the  use  of 
the  church,  or  for  the  use  of  a  religious 
society,  out  of  w^iich  the  church  is  gath- 
ered. Lands,  or  personal  property,  may  be 
conveyed  by  deed  or  will  to  a  person  and 
his  heirs  in  trust  for  a  specified  church  or 
society.  The  grantee,  devisee,  or  donee, 
in  such  a  case  is  the  owner  in  law,  though 
he  has  no  beneficial  interest.  The  whole 
beneficial  use  is  in  the  church  or  society 
as  fully  as  if  they  were  the  absolute  own- 
ers. Yet  he  alone  can  sue  in  a  court  of 
law  for  trespasses  upon  the  property,  and 
he  alone  can  make  title  to  others  in  case 
of  a  sale.  If  he  dies,  the  ownership  de- 
scends to  his  heir-at-law,  clothed  however 
with  the  same  trusts  with  which  his  ances- 
tor held  it.  If  there  be  two  or  more  trus- 
5* 


I06  SECOND    LECTURE. 

tees,  the  ownership,  on  the  death  of  one 
passes  to  the  survivor  or  survivors,  and 
on  the  death  of  the  last  survivor  descends 
to  his  heir-at-law,  who  will  be  compelled 
to  allow  such  use  of  the  property  as  the  re- 
ligious society  may  direct,  not  inconsistent 
with  the  purposes  for  which  the  grant  was 
first  made. 

A  third  mode  in  which  church  property 
is  sometimes  held  is  by  the  agency  of  two 
co-operating  corporations,  one,  the  re- 
ligious society  with  power  to  elect  and 
employ  a  minister,  collect  dues,  and  hold 
property  directly  as  the  property  of  the 
society,  and  the  other,  having  also  power 
to  acquire,  manage,  and  dispose  of  lands, 
and  personality  in  trust  for  the  benefit  of 
the  society.  This  is  a  cumbrous  system, 
but  it  is  sometimes  selected  for  the  sup- 
posed   reason  that  as  each  of  these  dual 


SECOND    LECTURE.  10/ 

corporations  performs  a  somewhat  differ- 
ent office,  they  act  as  checks  upon  each 
other,  and  that  thus  property  may  be  held 
and  perpetually  devoted  to  religious  uses, 
with  less  danger  of  its  being  squandered 
by  those  for  whose  use  it  is  held,  and  with 
less  risk  of  its  being  seized,  or  sold  on 
execution  for  liabilities  incurred.  In  my 
opinion  such  a  complex  arrangement  adds 
little,  if  anything  to  the  security  of  the 
property,  and  it  must  be  attended  with 
many  embarrassments. 

A  fourth  mode  in  which  church  pro- 
perty is  held,  is  by  an  unincorporated  re- 
ligious association  without  known  trustees. 
A  person  may  undoubtedly  give  by  will 
both  personalty  and  realty  to  an  unincor- 
porated religious  society,  without  the  in- 
tervention of  named  trustees,  and  the  law 
will  sanction  the  gift.     Whether  lands  can 


I08  SECOND    LECTURE. 

be  granted  directly  to  such  a  society  by 
deed,  may  admit  of  considerable  doubt. 
Leeal  form  is  not  so  essential  in  a  will  as 
it  is  in  a  deed.  The  law  recognizes  the 
fact  that  a  testator  when  making  his  will 
may  be  infirm,  and  "  inops  consilii,"  des- 
titute of  legal  counsel.  A  w^ill  therefore 
sometimes  has  an  operation  which  a  deed 
usino:  the  same  w^ords  would  not  have. 
But,  though  an  unincorporated  religious 
society  may  hold  property  devised  or  be- 
queathed to  it  for  pious  purposes,  and, 
possibly,  property  conveyed  to  it  by  deed, 
such  a  tenure  is  attended  with  serious 
embarrassments.  Ordinarily  such  a  soci- 
ety cannot  sell  its  property.  It  cannot 
make  a  deed.  Of  course  it  can  make  no 
disposition  of  it  by  will.  It  is  always  em- 
barrassed in  protecting  its  own  enjoyment. 
It    cannot    sue    for    trespasses    upon    the 


SECOND    LECTURE.  I09 

property.  Courts  of  equity,  it  is  true,  will 
raise  up  trustees  for  the  protection  of  such 
societies,  and  in  some  of  the  States  statutes 
have  given  to  them  a  quasi  corporate 
existence.  But  prudence  and  convenience 
alike  dictate  that  in  all  cases  where  an  un- 
incorporated religious  society  desires  to 
acquire  and  to  hold  property  of  any  nature, 
the  legal  ownership  thereof  should  be 
vested  in  trustees  for  the  use  of  the  soci- 
ety. Such  trustees  have  power  to  protect 
the  property,  to  sue  for  injuries  to  it,  and, 
under  the  direction  of  the  society,  to  sell 
and  convey  it.  At  the  same  time  they  are 
amenable  to  courts  of  law.  They  may  be 
compelled  to  account,  and  they  may  be 
restrained  from  any  violation  of  their  trust. 
There  is  still  another  mode  in  which 
property  is  largely  held  in  this  country  for 
religious,  or  church  uses.     In   the  Mora- 


no  SECOND    LECTURE. 

vian  congregations  the  property  devoted 
to  pious  uses  is  held  neither  by  a  corpora- 
tion nor  by  trustees,  nor  yet  by  the  con- 
gregation itself.  In  some  of  the  congre- 
gations, and  I  presume  in  all,  the  title  to 
the  churches,  school-houses,  and  ceme- 
teries is  held  by  the  bishop,  who  transmits 
it  by  will  to  his  successor  in  office.  And 
such  is  the  tenure  of  most  Roman  Catholic 
churches  in  the  country.  The  title  to  the 
real  estate  resides  in  the  bishop  of  the 
diocese.  In  a  certain  sense  he  is  a  trus- 
tee thereof  for  religious  uses,  but  there  is 
no  declaration  of  trust,  and  he  controls  the 
enjoyment,  and  transmits  the  title  by 
devise.  The  purpose  of  this  arrangement 
is  to  exclude  the  laity  from  that  power  of 
interference  which  they  would  have  were 
the  title  vested  in  a  corporation.  But  in- 
asmuch as  the  holders  of  such   titles  are 


SECOND   LECTURE.  Ill 


not  corporations,  either  sole  or  aggregate, 
as  are  the  Enghsh  bishops,  cleans,  and  even 
parsons,  lands,  held  by  them,  do  not  pass 
to  their  successors  in  office,  unless  through 
the  instrumentality  of  a  deed,  or  will. 

These  are  the  most  common  modes  in 
which  property  is  holden  for  religious  or 
church  uses.  Whatever  mode,  other  than 
the  last  mentioned,  may  be  selected,  it  is 
of  great  importance  that  the  instrument 
(whether  it  be  a  deed,  or  a  will),  by  which 
the  property  is  acquired,  should  recognize 
the  distinctive  character  of  the  oro^anization 
for  the  benefit  of  which  the  conveyance  is 
to  be  made.  The  reasons  for  this  will 
appear  from  what  I  said  in  my  former 
lecture.  It  is  necessary  in  order  to  pre- 
vent a  possible  perversion  of  the  property 
from  the  uses  for  which  its  acquisition 
was  intended. 


112  SECOND   LECTURE. 

[.  If  the  church  organization  is  a  sepa- 
rate and  independent  one,  at  Hberty  to 
form  and  change  its  order,  and  articles  of 
faith,  having  no  connection  with  other 
churches,  or  associated  with  others  only 
for  counsel,  and  at  liberty  to  dissolve  even 
that  association  at  its  pleasure,  a  convey- 
ance to  it,  or  for  its  use  generally,  is  all 
that  is  needed.  The  property  is  thus  put 
under  the  control  of  a  majority  of  the  con- 
gregation, and  its  uses  may  change  with 
the  changing  creed  or  order  of  the  church. 

2.  But  if  the  church  be  independent, 
and  yet  it  is  designed  that  the  property 
conveyed  to  it,  or  in  trust  for  it,  shall  be 
devoted  to  the  maintenance  and  propaga- 
tion of  certain  doctrines,  or  articles  of  faith, 
the  deed  or  will  should  declare  such  de- 
sign explicitl)^ 

3.  Or  if  the  purpose  be   to  settle   the 


SECOND   LECTURE.  II3 

property  for  the  use  of  a  church,  or  re- 
ligious society  while  it  remains  in  connec- 
tion with  and  subject  to  the  authority  of 
some  larger  ecclesiastical  body,  the  con- 
veyance, should  recognize  the  connection 
and  the  subordination  intended.  A  fail- 
ure to  observe  these  precautions,  and  to 
indicate  clearly  and  distinctively  in  the 
muniments  of  title  to  church  property  the 
precise  uses  which  the  property  is  intended 
to  subserve,  has  often  encouraged  division 
and  given  rise  to  unhappy  litigation.  And 
it  cannot  be  doubted  that  very  many  titles 
are  held  for  church  purposes  in  full  confi- 
dence that  they  secure  the  teaching  of 
some  particular  doctrines,  or  systems  of 
faith,  or  that  they  are  for  the  benefit  of 
some  particular  denomination,  or  a  church 
subject  to  a  known  higher  ecclesiastical 
authority,  when  in   fact,  they  may  consist- 


114  SECOND   LECTURE. 

ently  with  law  be  converted  to  quite  differ- 
ent purposes. 

Having  thus  called  your  attention  to 
the  various  modes  in  which  church  prop- 
erty may  be  held  I  proceed  to  consider 
how  it  may  be  acquired,  or  rather,  what  are 
the  usual  evidences  of  title  to  it.  Upon 
this  subject  little  need  be  said,  for,  gener- 
ally, the  modes  of  acquisition  do  not  dif- 
fer from  those  by  which  natural  persons, 
and  corporations,  acquire  rights  to  prop- 
erty. The  evidence  of  right  or  title  is  not, 
however,  always  found  in  a  deed  or  a  will. 

In  some  cases  the  law  presumes  a 
grant,  when  none  was  ever  actually  made. 
When  there  has  been  an  actual  and  con- 
tinuous occupation  by  a  religious  society, 
of  a  lot  of  ground,  for  religious  uses,  with- 
out any  recognition  of  right  to  the  lot  in 


SECOND    LECTURE.  II5 

any  other  person,  and  when  that  occu- 
pancy has  been  continued  during  a  period 
equal  to  the  statutory  period  of  Hmitation 
in  the  State  (varying  in  the  different 
States  from  seven  to  twenty-one  years), 
courts  of  law  sometimes  presume  that  a 
grant  was  made  by  the  former  owners  to 
the  occupants,  and  this  presumption  may 
be  conclusive  of  the  right.  Even  if  not, 
the  statute  itself  will  protect  the  continued 
enjoyment.  Instances  not  a  few  exist, 
especially  in  the  rural  districts  of  the  older 
States,  in  which  this  is  the  only  evidence 
that  a  religious  society  has,  of  title  to  the 
church  property  it  occupies.  It  is  applic- 
able not  only  to  the  ground  upon  which  a 
church  edifice  may  be  erected,  but  also  to 
privileges  on  adjoining  property,  to  pas- 
sage-ways to  and  from  the  church,  and  to 
easements  necessary  and  convenient  to  the 


I.l6  SECOND    LECTURE. 

purposes  of  its  enjoyment.  Legal  pre- 
sumptions, recognized  both  in  courts  of 
law  and  of  equity,  are  invaluable  for  giv- 
ing security  to  church  titles. 

Another  mxode  of  acquiring  church 
property  is  by  license  from  the  owner. 
In  some  cases  the  proprietor  of  land  has 
given  permission  to  a  religious  society,  or 
church  organization,  to  build  a  church 
edifice  upon  his  property.  Such  a  license 
may  be  either  verbal  or  written.  In  either 
case  it  may  be  revoked  before  the  licenses 
have  done  anything  under  it.  But  when,  in 
reliance  upon  it,  they  have  proceeded  and 
made  expenditures  upon  the  property,  in 
the  erection  of  a  building,  it  is  not  in  the 
power  of  the  owner  to  withdraw  his  per- 
mission, and  resume  the  possession  of  the 
land.  The  license  executed  has  become  a 
contract,  and  a  muniment  of  right.     And 


SECOND    LECTURE.  11/ 

a  license  is  sometimes  presumed  from  the 
conduct  of  the  party  who  had  a  right  to 
give  it.  Thus  if  the  true  owner  of  a  lot  of 
ground  should  see  a  religious  society  be- 
gining  to  build  upon  it,  under  a  mistaken 
belief  of  its  members  that  they  had  a  right 
there  to  build  and  if,  with  knowledge  of 
their  belief,  he  should  remain  silent,  the 
law  would  not  permit  him  to  claim  the 
property  after  the  building  was  erected. 
It  would  be  presumed  he  had  licensed,  or 
permitted  the  erection,  and,  as  he  did  not 
speak  when  he  should  have  spoken,  he 
would  not  be  permitted  to  speak  afterward. 
Closely  allied  to  acquisitions  by  license 
are  acquisitions  by  dedication.  The  com- 
mon law  allows  the  devotion  by  dedication 
of  property  to  religious  and  charitable 
uses,  such  as  for  church  lots,  cemeteries, 
and  other  like  purposes.      Indeed,  an  owner 


Il8  SECOND    LECTURE. 

of  property  may  give  his  land  for  any  pub- 
•lic  use.  This  he  may  do  either  by  parol, 
or  in  writing,  and  courts  of  law  will  protect 
the  gift.  And  it  is  not  necessary  that  the 
religious  society  intended  to  be  benefited 
should  be  in  being  when  the  dedication  is 
made.  Whenever  afterward  it  comes  into 
existence,  the  anterior  dedication  will 
enure  to  its  benefit,  if  the  society's  objects 
accord  with  the  purpose  of  the  donor,  and 
it  can  be  gathered  that  he  contemplated  a 
use  by  such  a  society. 

Of  the  other  and  more  common  modes 
of  acquiring  church  property,  such  as  by 
deed,  or  by  will,  by  absolute  or  conditional 
grants  or  devises  for  a  limited  time,  I  need 
say  nothing,  since  they  are  familiar  to  every 
one.  And  there  is  nothing  in  the  acquisi- 
tion of  personal  property  for  church  pur- 
poses that  requires  particular  notice. 


SECOND   LECTURE.  II9 

Before  leaving  this  branch  of  my  sub- 
ject I  may  add  that  the  right  of  a  church 
organization  to  acquire  and  hold  lands  for 
religious  uses,  ordinarily  carries  with  it  the 
right  to  sell  the  property  thus  holden,  and 
make  title  therefor  to  a  purchaser.  It 
does  not,  however,  in  all  cases.  When  real 
estate  is  held  under  a  license  or  a  dedica- 
tion for  a  specific  religious  use,  the  re- 
ligious society  holding  it  cannot  lawfully 
sell  it  for  any  other  use.  Certainly  they 
they  cannot  without  the  consent  of  the 
donor,  unless  aided  by  authority  given  by 
the  legislature  of  the  State,  and  I  think  it 
may  well  be  doubted  whether  such  a  power 
can  be  conferred  by  legislative  authority. 
And  in  all  cases  where  the  power  to  alien- 
ate exists,  the  conveyance  must  be  made  by 
the  person,  or  persoirs,  the  corporation  or  the 
trustees  in  whom  the  legal  title  is  vested. 


120  SECOND    LECTURE. 

I  come  next  to  the  subject  of  internal 
regulation  of  religious  societies  by  by-laws. 
When  such  a  society  is  unincorporated,  it 
generally  has  articles  of  association,  by 
which  its  elections,  its  meetings,  and  the 
conduct  of  its  temporal  affairs  are  reg- 
ulated. Substantial  conformity  to  the  re- 
quirements of  those  articles  is  essential  to 
the  valid  transaction  of  any  of  its  business. 
The  articles  may  be  changed  from  time  to 
time,  by  the  consent  of  the  associates,  but 
while  they  exist  they  are  controlling. 

When  a  religious  society  is  incorpo- 
rated, its  charter  is  its  fundamental,  law, 
and  that  confers  upon  it  power,  either  ex- 
pressly or  by  necessary  implication,  to 
make  by-laws  for  the  regulation  of  its 
internal  management.  By-laws  of  such 
corporations  generally  refer  to  the  times 
and  conduct  of  meetings   of  the  corpora- 


SECOND    LECTURE.  121 


tors,  to  the  number  and  duties  of  the 
officers,  to  the  times  and  mode  of  conduct- 
ing the  elections,  and  to  the  quaUfications 
of  the  electors,  unless  these  matters  are 
regulated  by  the  charter.  There  are  also 
many  other  matters  relating  to  the  corpo- 
rate action,  in  relation  to  which  by-laws 
may  be  made.  The  power  .of  making 
by-laws  resides  only  in  those  in  whom  it  is 
vested  by  the  charter ;  but  if  that  instru- 
ment is  silent  upon  the  subject,  the  power 
may  be  exercised  by  the  members  of  the 
corporation  at  large.  It  is  always  a  limited 
power.  No  by-law  is  of  any  force  which 
conflicts  with  the  charter,  or  with  the  law 
of  the  land.  Nor  is  any  by-law  valid  which 
does  not  relate  to  the  legitimate  purposes 
of  the  corporation.  If  the  charter  has  pre- 
scribed who  shall  be  entitled  to  vote  at 
any  corporate  meeting,  the  right  of  such 
6 


122  SECOND    LECTURE. 

persons  to  vote  cannot  be  restricted  or 
taken  away  by  any  by-law.  Yet,  if  the 
language  of  the  charter  is  only  negative, 
the  rule  is  different.  Let  me  illustrate. 
If  the  charter  declares  that  only  members 
of  the  church  who  have  been  such  twelve 
months  preceding  the  election,  shall  have 
a  vote  in  the  choice  of  church  officers,  it 
is  lawful  to  adopt  a  by-law  declaring  that 
no  member  of  the  church  whose  pew-rent 
has  been  in  arrears  six  months  shall  be 
entitled  to  a  vote.  Such  a  by-law  and  the 
charter  are  not  in.  conflict  with  each  other. 
Very  often  the  charter  makes  no  provision 
respecting  voters.  In  such  cases,  the  mem- 
bers of  the  corporation  may  determine  by 
a  by-law  who  may  vote,  and  for  what  offi- 
cers. A  by-law  that  only  communing 
members  of  the  church  shall  have  a  voice 
in  the  choice  of  a  minister,  or  other  church 


SECOND    LECTURE.  I23 

officers,  is  good.  So  is  one  that  allows 
both  male  and  female  members  to  vote,  or 
confines  the  elective  right  to  one  sex.  So 
is  one  that  contributors  or  pew-holders 
alone  shall  be  electors.  A  by-law  that  all 
members  of  the  church,  or  of  the  church 
and  society,  may  vote,  does  not  extend  to 
infants,  or  persons  under  the  age  of  tw^enty- 
one  years.  Neither  in  civil  nor  in  relig- 
ious corporations  are  infants  allowed  by 
the  common  law  to  vote,  unless  such  right 
is  expressly  given  to  them  by  the  charter, 
though  perhaps,  if  the  charter  is  silent  on 
this  subject,  the  right  might  be  conferred 
by  express  words  in  a  by-law.  Voting  by 
proxy  is  not  allowable,  unless  the  charter 
permits  it.  All  by-laws  lawfully  made  in 
pursuance  of  the  power  conferred  by  the 
charter  are  as  binding  upon  every  member 
of  the  corporation  as  is  the  charter  itself. 


124  SECOND    LECTURE. 

But  courts  of  law  and  equity  have  always 
claimed  and  exercised  the  right  to  declare 
a  by-law  of  any  corporation  void,  which,  in 
their  judgment,  was  unreasonable. 

It  seems  quite  evident,  I  will  remark  in 
concluding  what  I  propose  to  say  upon 
this  subject,  that  the  charter  of  a  religious 
society  ought  always  to  define  who  shall 
have  a  right  to  vote  in  the  choice  of  church 
officers.  Many  conflicts  of  opinion,  and 
much  alienation  of  feeling  would  thus  be 
prevented.  The  attempt  to  regulate  such 
matters  by  by-laws,  or  by  usage,  is  attended 
with  danger  to  the  peace  of  the  church. 
The  most  fit  subjects  for  by-laws  are  the 
duties  of  officers,  and  the  order  of  corpo- 
rate business. 

In  regard  to  pews,  or  church  seats,  I 
do  not  propose  to  say  much.  Not  much 
is  needed    to  exhibit    the  law  relating    to 


SECOND    LECTURE.  1 25 

them  as  it  is  held  in  this  country.  In 
England,  the  law  of  church  seats  in  the 
cathedrals,  the  parish  churches,  and  in  the 
chapels  of  ease,  is  complicated  and  often 
difficult  to  be  understood.  Even  seat 
rights  in  private  and  proprietary  chapels 
have  frequently  been  the  subjects  of  con- 
troversy. In  the  church  edifices  erected 
under  the  church  building  acts  of  parlia- 
ment (more  than  twenty  in  number),  seat 
rights  are  regulated  by  statute,  and  some 
of  the  regulations  are  novel.  But  to  at- 
tempt an  exhibition  of  the  law  governing 
seat  rights  in  the  different  classes  of  Eng- 
lish churches  would  require  much  time, 
and  it  would  be  alien  from  my  purpose, 
which  is  to  speak  generally  of  the  law  in 
this  country.  I  confess  some  inclination 
to  refer  to  the  history  of  the  introduction 
of  pews  into  churches,  for  to  me  it  is  ex- 


126  SECOND    LECTURE. 

tremely  interesting.  But  I  must  resist  the 
temptation.  Let  me  refer  those  of  you 
who  have  curiosity  upon  the  subject,  to 
"  Heale's  Law  of  Church  Seats,"  pubhshed 
in  London  in  1872,  where  you  will  find 
much  that  is  amusino^  as  well  as  instructive. 
though  the  book  relates  almost  exclusively 
to  pews,  or  seats,  in  buildings  of  the  Eng- 
lish Established  Church.  In  this  country 
where,  as  we  have  seen,  the  ownership  of 
church  property  is  generally  vested  either 
in  a  corporation,  or  in  trustees  who  hold 
for  the  use  of  a  religious  societ}^  or  of  a 
church  organization,  it  may  be  regarded 
as  the  common  rule  that  pews  belong  to 
the  legal  owners  of  the  church  building. 
And  the  right  of  an  individual  holder  of  a 
pew  is  not,  in  any  just  sense,  partial  owner- 
ship of  the  building  itself.  It  is  not 
ownership  of  the   ground    on    w^iich   the 


SECOND    LECTURE.  12/ 

pew  rests.  The  sale  of  a  pew,  as  a  pew, 
conveys  no  such  ownership.  The  pew- 
holder's  right  is  incorporeal,  a  mere  ease- 
ment, as  the  law  denominates  it,  or,  at  most, 
an  unfructuary  interest ;  in  its  nature  some- 
thing like  the  right  one  man  may  have  to 
pass  over  the  land  of  another — a  privilege 
upon  the  land,  but  not  ownership  of  it. 

The  right  to  a  pew  being  thus  limited, 
it  does  not  interfere  with  the  power  of  the 
corporation,  or  of  the  trustee,  to  take  down 
the  church  and  rebuild.  The  holder  of 
the  pew  takes  his  right,  subject  to  such 
changes  as  the  altered  circumstances  of 
the  congregation  require.  His  consent  is 
not  necessary  to  such  change,  and  when 
the  church  edifice  is  taken  down  and  a 
new  one  is  erected  in  its  place,  his  right  is 
extinguished.  He  is  not  entitled  to  a  pew 
in  the  new  building  merely  because  he  was 


128  SECOND    LECTURE. 

a  pew-holder  in  the  old.  But  while  his 
right  remains  it  is  exclusive.  He  may  use 
the  pew  on  all  occasions  when  the  church 
is  open  ;  whether  for  worship,  or  for  any 
other  purpose.  He  may,  if  he  will,  put  a 
fastening  on  the  door  of  his  pew,  and  deny 
access  to  it  to  all  persons  other  than  those 
whom  he  chooses  to  admit.  He  may 
even  maintain  an  action  at  law  against  an 
intruder. 

The  mode  of  acquisition  of  pew  rights 
in  this  country  is  very  simple.  It  is  either 
by  perpetual  grant  from  the  owners  of  the 
church  edifice,  whoever  they  may  be,  or  it 
is  by  demise  for  a  limited  term.  In  some 
churches  the  pews  are  sold,  in  others  they 
are  let  from  year  to  year,  and  in  others 
still  they  are  free.  Pews  in  the  parish 
churches  of  England  are  very  often  held 
by  prescription,  that  is,  in    virtue    of  the 


SECOND   LECTURE.  1 29 


fact  that  the  possession  has  been  enjoyed 
by  the  holder,  or  those  to  whose  right  he 
has  succeeded  (using  the  quaint  language 
of  old  judges),  "  from  the  time  whereof  the 
memory  of  man  runneth  not  to  the  con- 
trary." Other  pew  rights  are  appurtenant 
to  the  ownership  of  landed  estates  in  the 
vicinity,  and  others  still  belong  to  the  in- 
cumbents of  certain  offices  by  virtue  of 
their  incumbency.  I  know  of  no  such 
titles  to  pews  in  this  country,  and  certainly 
they  are  undesirable. 

All  pew  rights  are,  of  course,  subject 
to  such  quit-rents,  or  assessments,  as  were 
stipulated  for,  or  were  existing  when  the 
rights  were  granted,  and  an  action  at  law 
may  be  maintained  against  the  holder  or 
occupant  for  the  recovery  of  those  rents. 
These  rents  cannot,  however,  be  raised  dur- 
ing the  continuance  of  the  holder's  right, 
6* 


I30  SECOND    LECTURE. 

without  his  consent,  unless  the  power  to 
raise  them  was  reserved  in  the  grant.  It  is 
not  essential  to  the  liability  of  a  pew-holder 
for  the  rent  that  he  has  actually  occupied 
the  pew.  His  holding  the  right  is  sufficient 
to  make  him  a  debtor  for  the  rent. 

Of  course  when  the  right  to  a  pew  has 
been  created  by  a  lease  for  a  defined  period, 
it  will  terminate  at  the  expiration  of  that 
period,  but  when  the  pew  has  been  sold  to 
a  purchaser,  his  right,  unless  surrendered, 
will  continue  so  long  as  the  church  stands 
and  is  used  for  church  purposes.  On  the 
death  of  the  owner,  it  devolves  upon  either 
his  heirs,  or  legatees,  or  devisees,  or  upon 
his  personal  representatives.  Whether  in 
the  event  of  failure  to  dispose  of  it  by  will 
it  passes  to  the  heirs,  or  to  the  executors  or 
administrators,  depends  upon  the  question 
whether  by  law  of  the  State  in  which  the 


SECOND   LECTURE.  131 

church  edifice  is  situated,  pew  rights  are 
real  or  personal  property.  This  is  some- 
times determined  b}^  statute,  but  when  it 
is  not,  there  has  been  a  difference  of  opin- 
ion in  the  courts.  In  some  of  the  States 
pew^s  are  considered  real  property,  as  in 
Connecticut  and  Maine.  In  such  cases 
the  pew  descends  to  the  heir-at-law.  In 
other  States  pews  are  regarded  as  personal 
property,  and  on  the  death  of  the  owners 
they  vest  in  his  executors  or  administrators, 
unless  disposed  of  by  his  will.  Such  is  the 
law  of  Massachusetts  and  New  Hampshire, 
and  I  think  of  most  of  the  States.  In 
New  York  the  decisions  of  the  courts  have 
left  the  subject  in  some  doubt,  and  I  will 
not  venture  to  express  an  opinion  respect- 
ing it.  It  is  important  to  the  church,  or 
religious  society,  only  as  it  determines  who 
is  responsible   for  the  pew  rents   accruing 


132  SECOND    LECTURE. 

after  the  decease  of  a  pew-holder,  though 
in  Pennsylvania  it  has  been  decided  that 
when  pews  descend  to  executors,  they  are 
not  liable  for  pew  rents  accruing  after  the 
death  of  their  testator.  I  doubt  whether 
such  would  be  held  to  be  the  law  elsewhere. 

Thus  far,  you  will  have  observed,  my 
remarks  have  been  directed  principally  to 
the  law  as  it  affects  the  property  of  single 
church  organizations.  A  denomination  of 
Christians,  however,  consisting  of  many 
church  organizations,  may  own  property, 
as  a  single  body.  It  may  own  a  theolog- 
ical seminary,  or  buildings  for  the  conve- 
nience of  its  benevolent  operations,  or  a 
fund  for  the  promotion  of  its  interests. 
These  and  other  kinds  of  property  may 
belong  to  it,  as  a  whole ;  may  be  acquired 
in  the  same  manner,  held  by  the  same  ten- 


SECOND   LECTURE.  133 

ure,  and  controlled  and  regulated  by  the 
same  law  of  trusts  and  charities.  So  there 
are  benevolent  and  religious  associations, 
happily  many  in  number,  which  are  adju- 
tants of  the  churches,  and  which  receive 
and  control  large  amounts  of  property, 
though  they  are  not  subordinate  to  any 
church  authority.  They,  too,  are  protected 
in  the  enjoyment  of  their  property,  aided 
in  its  acquisition,  and  controlled  in  its  dis- 
position by  the  civil  law,  by  the  same  law 
of  charities  and  trusts  which  is  the  shield 
and  reo-ulator  of  the  humblest  churcli  or- 
ganization. 

I  have  not  time  to  consider  fully  the 
law  relating  to  the  powers  and  duties  of 
church  officers.  I  mean  the  officers  of  a 
church  as  distinguished  from  the  officers  of 
the  corporation,  or  religious  society,  that 
holds  the  property.    Nor  is  such  a  consider- 


134  SECOND    LECTURE. 

ation  essential  to  the  object  I  have  in  view. 
The  powers  and  duties  of  the  ministers, 
the  elders,  the  deacons,  the  vestrymen,  and 
the  bishops,  are  subjects  of  definition  and 
regulation  rather  by  ecclesiastical  than  civil 
law.  There  are,  however,  a  few  matters, 
relative  to  the  civil  rights  and  duties  of  min- 
isters as  such,  that  it  may  be  well  to  notice. 
In  some  of  the  States,  regulations  have 
been  prescribed  by  statutes  respecting  the 
solemnization  of  marriage  by  clergymen,  as 
well  as  respecting  the  registration  of  such 
marriages,  and  the  registration  of  baptisms 
and  burials.  What  these  are  I  do  not  pro- 
pose to  say.  They  differ  with  the  statutes 
of  the  several  States,  and  it  would  require 
much  time  to  mention  them  in  detail.  But 
there  are  some  particulars  not  affected  by 
local  statutes,  to  which  I  may,  perhaps  not 
unprofitably,  allude.     It  has  occurred  that 


SECOND    LECTURE.  135 

an  unhappy  conflict  has  arisen  between 
parental  authority  and  the  action  of  a 
Christian  minister.  I  may  illustrate  what 
I  mean  by  referring  to  a  real  case  actually 
decided  in  one  of  our  courts.  The  circum- 
stances, briefly  stated,  were  these.  A  Bap- 
tist clergyman  of  good  standing  w^as  pro- 
hibited by  a  father  from  administering  the 
ordinance  of  Baptism,  by  immersion,  to  his 
minor  daughter,  aged  seventeen,  she  hav- 
ing been  previously  baptized  in  the  Presby- 
terian Church  to  which  her  mother  be- 
longed. The  clergyman,  however,  disre- 
garding the  express  prohibition  of  the 
father,  baptized  the  daughter  a  few  Sab- 
baths afterward,  by  immersing  her,  and 
the  question  was  raised  whether  his  act  was 
not  a  violation  of  law.  The  court  decided 
that  it  was,  and  inflicted  a  penalty  upon 
him.     The  reasons  given  for  the  decision 


136  SECOND    LECTURE. 

were  that  the  act  of  the  clergyman  was  an 
interference  with  the  lawful  authority  of 
the  father  over  the  child  during  her  mi- 
nority ;  that  the  authority  of  the  father 
results  from  his  duties;  that  he  is  charged 
with  the  duties  of  maintenance  and  educa- 
cation ;  that  these  duties  cannot  be  per- 
formed without  authority  to  command  and 
enforce  obedience  ;  that  the  duty  to  edu- 
cate requires,  proper' attention  to  religious 
culture,  and  that,  in  the  discharge  of  this 
duty,  it  is  the  clear  right  of  the  father  to 
designate  such  teachers  in  morals  and  re- 
ligion, as  he  may  think  best  fitted  to  give 
correct  instruction.  From  this  it  seemed 
to  the  court  to  follow  that,  though  a  father 
cannot  force  a  child  to  adopt  religious 
opinions  contrary  to  the  dictates  of  the 
child's  conscience,  if  he  should  come  to 
the  conclusion,  the  attendance  of  his  child 


SECOND   LECTURE.  1 37 

upon  the  ministrations  of  any  particular 
religious  instructor  was  not  conducive  to 
its  welfare,  he  might  prohibit  such  attend- 
ance ;  and  confine  it  to  such  religious 
teachers  as  he  might  select,  and  that  any 
interference  with  the  exercise  of  this  au- 
thority amounted  to  an  invasion  of  his 
leo-al  riorhts.  This  decision  met  some  criti- 
cism  at  the  time  it  w^as  made,  but  it  was 
accepted  by  eminent  lawyers  and  judges, 
as  well  as  by  others,  as  a  true  exposition 
of  the  law\  It  is  understood  to  have  had 
the  approval  of  Chancellor  Kent. 

It  is  equally  true  that  masters  have  a 
right  to  control  the  religious  education  of 
their  apprentices,  and  direct  what  religious 
services  they  shall  attend.  With  this  right 
neither  ministers  of  religion,  nor  any  other 
persons,  can  lawfully  interfere. 

The  question  has  sometimes  been  agi- 


138  SECOND   LECTURE. 

tated  whether  a  clergyman,  when  called  as 
a  witness  in  a  court  of  law,  may  refuse  to 
disclose  matters  which  have  been  confiden- 
tially communicated  to  him  by  persons 
under  his  religious  teaching.  The  general 
rule  in  this  country  is  that  he  cannot. 
There  are  some  communications  which 
the  law  regards  as  privileged,  and  which 
the  person  who  has  received  them  is  not 
at  liberty  to  disclose.  Such  are  those  made 
by  a  client  to  his  legal  counsel.  But 
neither  penitential  confessions  made  to  a 
minister,  nor  even  secrets  confided  to  a 
Roman  Catholic  priest  in  the  confessional, 
are  considered  privileged  communications, 
which  the  minister  or  priest  may  not  be 
compelled  to  reveal.  Some  modifications 
of  this  rule  have,  it  is  true,  been  made  by 
statute.  A  law  of  the  State  of  New  York' 
enacts  that  no  minister  of  the  Gospel,  or 


SECOND   LECTURE.  1 39 

priest  of  any  denomination  whatsoever, 
shall  be  allowed  to  disclose  any  confessions 
made  to  him  in  his  professional  character, 
in  the  course  of  discipline  enjoined  by  the 
rules  or  practice  of  s.uch  denomination. 
But  even  under  this  law,  the  confession  is 
privileged  only  when  it  has  been  received 
in  the  course  of  church  disciphne.  The 
general  rule  elsewhere  is  as  I  have  stated  it. 
I  have  no  time  to  say  more.  In  what 
I  have  said,  my  object  has  been  to  state 
generally  what  I  understand  to  be  the  rules 
of  civil  law,  in  this  country,  applicable  to 
church  poHty,  discipline,  and  property.  I 
have  aimed  only  to  gather  from  the  great 
mass  of  decisions  of  Federal  and  State 
courts,  as  well  as  from  the  statutes  of  the 
States,  the  conclusions  which  have  been 
reached,  without  endeavoring  to  state  the 
reasons  which    have  led  to  those  conclu- 


140  SECOND   LECTURE. 

sions.  And  I  have  passed  unnoticed  many 
distinctions  recognized  by  the  courts,  and 
important  to  be  understood  by  every  law- 
yer. I  am  not  speaking  to  lawyers,  or  to 
those  who  intend  entering  the  legal  profes- 
sion. I  am  addressing  those  who  look 
forward  to  the  Christian  ministry,  and  en- 
deavouring to  communicate  that  knowledge 
which  they  ought  to  possess — a  knowledge 
of  general  principles.  I  am  fully  aware 
that  all  which  I  have  stated  as  my  under- 
standing of  these  general  principles  does 
not  meet  universal  acceptance.  There  is 
a  want  of  harmony  in  the  decisions  of  the 
courts  of  the  different  States.  Doctrines 
are  advanced  by  some  which  are  denied 
by  others.  I  have  sought  only  to  spread 
before  you  those  doctrines  which,  in  my 
judgment,  are  supported  by  a  preponder- 
ance  of  authority,   and    by    the    soundest 


SECOND   LECTURE.  141 

reasoning.  And  I  think  there  is  manifest 
in  the  action  of  the  numerous  courts  of 
the  country  a  tendency  toward  greater  hcir- 
mony  of  decisions  upon  the  subjects  we 
have  been  considering  than  formerly  ex- 
isted. The  relation  of  municipal  law  to 
church  polity,  discipline,  and  property,  is 
becoming  better  understood ;  and  there  is 
less  conflict  of  judgment  than  there  was. 

i  detain  you  no  longer.  Fully  sensible 
as  I  am  that  what  has  been  said  is  not  a 
full  exposition  of  the  subject  to  which  your 
attention  has  been  called,  and  that  it  will 
not  make  you  lawyers,  it  has,  I  hope,  re- 
vealed to  you  something  that  you  may 
hereafter  find  convenient  and  useful. 


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